[Cover Illustration]




                                 TRIAL
                                   OF
                        THE MAJOR WAR CRIMINALS

                                 BEFORE

                           THE INTERNATIONAL
                           MILITARY TRIBUNAL

                              _NUREMBERG_
                    14 NOVEMBER 1945—1 OCTOBER 1946


                             [Illustration]


                   _PUBLISHED AT NUREMBERG, GERMANY_
                                 _1948_




        This volume is published in accordance with the
        direction of the International Military Tribunal by
        the Secretariat of the Tribunal, under the jurisdiction
        of the Allied Control Authority for Germany.




                              VOLUME XVII



                            _OFFICIAL TEXT_

                                _IN THE_

                            ENGLISH LANGUAGE



                             _PROCEEDINGS_

                        25 June 1946-8 July 1946




                              CONTENTS


     One Hundred and Sixty-third Day, Tuesday, 25 June 1946,
                  Morning Session                                   1
                  Afternoon Session                                37

     One Hundred and Sixty-fourth Day, Wednesday, 26 June 1946,
                  Morning Session                                  79
                  Afternoon Session                               115

     One Hundred and Sixty-fifth Day, Thursday, 27 June 1946,
                  Morning Session                                 149

     One Hundred and Sixty-sixth Day, Friday, 28 June 1946,
                  Morning Session                                 179
                  Afternoon Session                               211

     One Hundred and Sixty-seventh Day, Saturday, 29 June 1946,
                  Morning Session                                 244

     One Hundred and Sixty-eighth Day, Monday, 1 July 1946,
                  Morning Session                                 274
                  Afternoon Session                               308

     One Hundred and Sixty-ninth Day, Tuesday, 2 July 1946,
                  Morning Session                                 339
                  Afternoon Session                               362

     One Hundred and Seventieth Day, Wednesday, 3 July 1946,
                  Morning Session                                 393
                  Afternoon Session                               426

     One Hundred and Seventy-first Day, Thursday, 4 July 1946,
                  Morning Session                                 458
                  Afternoon Session                               496

     One Hundred and Seventy-second Day, Friday, 5 July 1946,
                  Morning Session                                 516
                  Afternoon Session                               546

     One Hundred and Seventy-third Day, Monday, 8 July 1946,
                  Morning Session                                 575
                  Afternoon Session                               614




                    ONE HUNDRED AND SIXTY-THIRD DAY
                          Tuesday, 25 June 1946


                           _Morning Session_

[_The Defendant Von Neurath resumed the stand._]

DR. OTTO NELTE (Counsel for Defendant Keitel): Mr. President, I should
like to advise the Tribunal that the first half of the manuscript of my
final defense speech in typescript will be ready tomorrow and the second
half by next Saturday. I am sorry to say that I personally can furnish
only eight copies, six of which are earmarked for the interpreters to
facilitate their difficult task. I am sorry that I could not furnish
more copies since I personally have no mimeographing machine. I hope the
Tribunal will appreciate the fact that after the statement made by the
chief prosecutor for the United States on Friday, I cannot make any
claims on the technical assistance of the Prosecution.

Therefore, I am asking the Tribunal to decide whether it would be worth
while, in order to expedite the presentation, to have the translation of
my speech put before them. In this event I would request that the
necessary arrangements be made. I am prepared to place my manuscript at
the disposal of the Tribunal, under the conditions announced by you, Mr.
President. What applies for me personally would, so far as I am advised,
apply also for the rest, at least for the majority of Defense Counsel.
In order to expedite the proceedings and to reduce the time spent on the
presentation of the final defense speeches, it is important to have this
point clarified.

THE PRESIDENT: Dr. Nelte, if you would hand in the manuscript to which
you have referred, the Tribunal will make arrangements to have it
translated into the various languages. I think that will meet the
position so far as you are concerned.

DR. NELTE: Yes.

THE PRESIDENT: The Tribunal has an announcement upon the subject, which
I am about to read. The announcement is this:

    “In view of the discussion which took place on the 13th of June
    1946, on the question of time to be taken by Defense Counsel,
    the Tribunal has given the matter further consideration.

    “When the Defense Counsel stated the time they wished to take,
    the Tribunal observed that some of the defendants required more
    time than others, and to this extent they did make an
    apportionment among themselves. The Tribunal feels that the
    suggested times are much too long and some voluntary restriction
    should be made.

    “Except as to a few of the defendants whose cases are of very
    wide scope, the Tribunal is of the opinion that half a day to
    each defendant is ample time for the presentation of his
    defense; and the Tribunal hopes that counsel will condense their
    arguments and limit themselves voluntarily to this time. The
    Tribunal, however, will not permit counsel for any defendant to
    deal with irrelevant matters or to speak for more than one day
    in any case. Four hours will be allowed at the beginning for
    argument on the general questions of law and fact, and counsel
    should co-operate in their arguments in such a way as to avoid
    needless repetition.”

As heretofore stated, the Tribunal would like to have a translation of
each argument in French, Russian, and English submitted at the beginning
of the argument. Counsel may arrange for the translation themselves if
they so desire; but if they will submit copies of their arguments to the
translating department as soon as possible and not less than 3 days in
advance of delivery, the translation will be made for them and the
contents of the copies will not be disclosed.

That is all.

Yes, Dr. Lüdinghausen.

DR. OTTO FREIHERR VON LÜDINGHAUSEN (Counsel for Defendant Von Neurath):
Last night we had stopped in our treatment of the various points raised
by the Prosecution. I should like to continue now and to put the
following question to you, Herr Von Neurath.

The Prosecution is charging you with the fact that in the Protectorate
Germans had a preferential position as compared with Czechs and that you
were responsible for that. Will you please comment on this?

CONSTANTIN VON NEURATH (Defendant): The position of Germans in the
Protectorate was not a preferential position which was vested with any
real preferences and advantages as compared with the Czechs, but it was
an entirely different position. The Germans had become citizens of the
Reich and, therefore, had the rights of Reich citizens, such as the
right to vote in Reichstag elections. The Czechs did not have this right
to vote, which is understandable in view of the existing
difference—variance between the German people and the Czech people.
There were at no time any actual advantages connected with the position
of the Germans in the Protectorate.

Efforts to have preferential treatment were made, of course, in the
chauvinistic Party and in nationalist circles. But I always opposed them
vigorously and prevented any practical realization of such efforts. In
this connection, however, I should like to stress once more that the
Czech people did not consider themselves inferior to the German people
in any way.

It was a question simply of a different people which had to be treated,
politically and culturally, according to its own characteristics. That
was also the reason for the maintenance of the so-called autonomy which
meant nothing more than the separation of the two nationalities with a
view toward securing for the Czechs their own way of living; and it is
evident that this autonomy had to be kept within certain limits,
dictated by the prevailing necessities of the Reich as a whole,
especially in times of war.

DR. VON LÜDINGHAUSEN: Now, I should like to deal with the individual
points raised in the Czech indictment, or rather the points found in the
Czech report, which is the basis for this charge. In this report it is
asserted that the freedom of the press was suppressed Is that correct
and what role did Herr Von Gregory play in the treatment of the press?

VON NEURATH: Herr Von Gregory had been the press attaché at the German
Legation in Prague and was subordinate to the Propaganda Ministry. Then
he came, as chief of my press department, to my administration and
controlled the Czech press according to the directives of the Propaganda
Ministry in Berlin. The Czech press, of course, was not free—no more
than the German press. Control of circulation and other measures,
especially censorship measures, were the same.

DR. VON LÜDINGHAUSEN: The Czech report further raises the charge that
the local Czech administrative offices were in many cases dissolved and
then reorganized and key positions filled with officials and town
councillors who were German or Czech collaborators. Is that correct?

VON NEURATH: These were communities with a considerable German minority,
particularly in Moravia. That they should also have a representation in
the local administration seemed to me a natural thing. Prague, for
instance, had a Czech mayor and a German assistant mayor. This could
hardly be objected to. With regard to the attempts of the Germans in the
various cities or districts to take a part in the local administration
to an extent that did not seem justified by their numerical strength, I
intervened and rejected them. In the municipal administrations of purely
Czech districts, such as in West Bohemia, there were generally no German
representatives at all. But on the other hand, there were
German-speaking enclaves, such as the region of Iglau, where the Germans
were dominant in numbers and thus, of course, in influence as well.

DR. VON LÜDINGHAUSEN: The Czech report accuses you of having—in this
way and through the appointment of higher land councillors
(Oberlandräte)—germanized the Czech administration, and this report
bases its accusations on a statement which you allegedly made to the
former Bohemian Landespräsident, Bienert, in which you said, “All that
has to be digested in 2 years time.”

VON NEURATH: I do not recall having made such a statement. And I cannot
imagine having uttered it. Here we are concerned with the co-ordination
of the Czechs—of the Czech with the German administration. The
Oberlandräte were not appointed by me, but their office was created as a
controlling agency by the Reich Government by the decree of 1 September
1939 in connection with the setting up of German administrations and the
Security Police. When the Oberlandräte appeared before me to give their
reports, I told them time and again that they were not to do any
administrative work themselves but were to supervise only. The Czech
method of administration was frequently superior to the German, I told
them.

DR. VON LÜDINGHAUSEN: With regard to this I should like to refer to
Document Number Neurath-149 of my document book, the decree on the
organization of the administration and the German Security Police, dated
1 September 1939. In Paragraphs 5 and 6 the appointment and the duties
of these Oberlandräte are described more in detail. A quotation of this
document might be redundant.

The Czech indictment further contains a statement by Herr Bienert to the
effect that on the problem of the co-ordination of the Czech
administration you had remarked to him something like: “That must be
carried out strictly; after all, this is war.” At the same time Bienert
stated in his interrogation that the purpose of this measure, that is,
the co-ordination of the Czech and the German administration, had been
to assure Germany of a peaceful hinterland during the war.

Will you kindly also comment on this.

VON NEURATH: It is possible that I told Bienert something along these
lines. However, I cannot remember it at this date. But it can be taken
for granted that in the sphere of administration, as in every other
sphere in the Protectorate also, the necessities of war were the main
concern. Restrictions of the autonomy in the Czech national
administration have to be considered from this point of view. That it
was my constant endeavor to keep the country quiet in the interest of
the Reich, and therewith in the interest of all, can hardly be held
against me. Apart from that, I should like to remark that the
introduction of restrictions on the autonomy was already contained
explicitly in the decree setting up the Protectorate.

DR. VON LÜDINGHAUSEN: In this connection I should like to refer to the
order contained in my document book under Number Neurath-144, Document
Book Number 5. The order was issued by the Führer and Reich Chancellor
on the Protectorate of Bohemia and Moravia and is dated 16 March 1939.
Under Article 11 it was even then stipulated that the Reich could
incorporate departments of the administration of the Protectorate into
their own administration. The Czech report further refers to a statement
made by the former Czech Minister Havelka dealing with the persecution
of the members of the Czech Legion of the first World War insofar as
they held public office. What can you tell us about this question of the
Legionnaires?

VON NEURATH: The Czech Legion had been founded in Russia during the
first World War. It was composed partially of volunteers, partially of
the balance of Czech regiments which had belonged to the old
Austro-Hungarian Army and had become prisoners of war in Russia. These
Czech Legionnaires enjoyed a certain exceptional position after the
founding of the Czech Republic. In part they were filled with strong
chauvinistic resentment toward the Reich which dated back to the time of
the nationalities fights. This, the so-called Legionnaire mentality, was
a catchword in Bohemia; and in times of political unrest it could
signify a certain political danger. By the way, this preferential
position which the Legionnaires enjoyed was widely attacked in the
Protectorate by the Czechs themselves. Therefore an effort was made, and
by Frank particularly, to remove the Legionnaires from public office.
But this took place only in the crassest cases and only insofar as those
Legionnaires had joined the Czech Legion voluntarily, that is, it did
not apply to those who were members of the former Austro-Hungarian Army.
From the very beginning I tried to make this discrimination, which
approximately corresponds to the situation—or corresponds with the
distinction—which today is made in Germany between the voluntary
members of the SS and the Waffen-SS.

DR. VON LÜDINGHAUSEN: The Czech indictment is further accusing you of
having supported the Czech Fascist organization Vlayka. It bases this
charge on a memorandum which you yourself wrote concerning a discussion
which you had with Hacha, the President of Czechoslovakia, on 26 March
1940. According to this memorandum you told Hacha that the personal and
moral qualities of the Vlayka leaders were well known to you; in any
case, you had to confirm the fact that this movement, this organization,
was the only one which had taken a positive stand toward the Reich and
toward collaboration with the Reich. How about that?

VON NEURATH: The Vlayka movement was the same as the collaborationists
in France. This movement worked to bring about a German-Czech
collaboration and, in fact, long before the Protectorate was
established. But the leaders of this movement were, in my opinion,
rather dubious characters, as I showed in the words to Hacha quoted
above. These leaders threatened and slandered President Hacha and
members of the Czech Government among others. State Secretary Frank had
known these men from former times and he wanted to support them merely
in consideration of their former co-operation with him. However, I
refused to do this, just as I refused the various applications of these
people to visit me.

On the other hand, it is possible that Frank supported them from a fund
which Hitler had placed at his disposal without my knowledge and about
which Frank was under obligation not to tell me anything.

DR. VON LÜDINGHAUSEN: What attitude, now, did you take to the
dissolution of parties—of political parties—and of trade unions?

VON NEURATH: That was like the control of the press, a necessity which
resulted from the system, from the political system of the Reich. In any
event, through this step taken by President Hacha and despite the
measures taken by Germany, no country suffered less from the war than
the Protectorate. The Czech people were the only ones in middle and
eastern Europe who could retain their national, cultural, and economic
entity almost to its full extent.

DR. VON LÜDINGHAUSEN: Now I should like to turn to the point raised by
the Prosecution which is concerned with an alleged cultural suppression.
What can you tell us about the handling of Czech educational affairs?

VON NEURATH: The Czech universities and other institutions of higher
education, as has been stated before, were closed at Hitler’s order in
November 1939. Again and again, at the request of President Hacha and of
the Protectorate Government, I appealed directly to Hitler to have these
schools reopened. But due to the dominating position of Herr Himmler, I
had no success. The consequence of the closing of the universities, of
course, was that a large number of young people who otherwise would have
become university students now had to look for work of a manual sort.
The closing of the institutions of higher learning also had
repercussions on the secondary school level. This had already been
heavily burdened after the separation of the Sudetenland in the autumn
of 1938, for the entire Czech intelligentsia from this region had
returned to the Czech-speaking area, or what was later the Protectorate.
Hence for the young people from the secondary schools there was hardly
any employment left. It was about the same situation which is now
prevailing in Germany. Concerning the closing of Czech lower schools and
other planned efforts to restrict Czech youth in their cultural freedom
and their educational possibilities, I know nothing.

DR. VON LÜDINGHAUSEN: Did you yourself approve of the closing of Czech
institutions of higher learning ordered by Hitler?

THE PRESIDENT: Dr. Von Lüdinghausen, he said that he tried to intervene
and get rid of Hitler’s order.

DR. VON LÜDINGHAUSEN: If that is sufficient for the Tribunal then he
need not answer the question further.

THE PRESIDENT: Don’t you think that is sufficient?

DR. VON LÜDINGHAUSEN: Yes, I just wanted to have it expressed once again
in a somewhat stronger way; however, if the Tribunal is satisfied with
the clarification of this problem, I am completely satisfied.

THE PRESIDENT: It would not make it any better if it was said twice.

DR. VON LÜDINGHAUSEN: Yes, if you—but, it is sufficient.

[_Turning to the defendant._] Do you know anything about an alleged
plan, mentioned in the Czech report, to turn the Czech people into a
mass of workers and to rob them of their intellectual elite?

VON NEURATH: No. Only a madman could have made a statement like that.

DR. VON LÜDINGHAUSEN: The Czech indictment, or report, asserts that
through your agencies, that is, with your consent and endorsement,
destruction and plundering of Czech scientific institutions took place.
On Page 58 of the German text, Page 55 of the English of this report,
USSR-60, it says:

    “The Germans occupied all universities and scientific
    institutions. They immediately got hold of the valuable
    apparatus, instruments, and scientific installations in the
    occupied institutions. The scientific libraries were plundered
    systematically and methodically. Scientific books and films were
    torn up or taken away. The archives of the academic Senate, the
    highest university authority, were torn up or burned; and the
    card indexes destroyed and scattered to the four winds.”

What can you tell us in regard to this?

VON NEURATH: In this connection, I can say only that I never heard of
any plundering and destruction of the sort described either in Prague or
later. The Czech Hochschulen, or institutions of higher education, were
closed together with the universities in the year 1939 at Hitler’s
order. The buildings and installations of the Prague Czech University,
as far as I know, were partly put at the disposal of the German
university which had been closed earlier by the Czechs, since, after the
Czech Hochschulen were closed, they could not be used any longer for
Czech scientific purposes.

DR. VON LÜDINGHAUSEN: Do you know anything at all about this...

THE PRESIDENT: I did not understand that answer. As I got it, “The
buildings, in part, were put at the disposal of German universities
which had been closed by the Czechs.”

VON NEURATH: In Prague. In Prague was the oldest German university; it
had been closed by the Czechs after the last war, and after the
establishing of the Protectorate it was reopened; and, as far as I know,
some of the equipment and buildings were used for this German
university.

THE PRESIDENT: Go on.

DR. VON LÜDINGHAUSEN: Do you know anything else about the removal of
scientific equipment, collections, objects of art, and so forth?

VON NEURATH: The only case about which I have any knowledge concerned
the removal of historically valuable old Gobelins from the Maltese
Palace in Prague. These were removed by a member of the Foreign Office
in Berlin, allegedly by order of the chief of protocol; and this was
done at night, secretly, and without my knowledge or the knowledge of my
officials. As soon as I learned of this I contacted the Foreign Office,
and I requested immediate restoration. Whether restoration was made, I
do not know; that was only in 1941, and meanwhile I had left Prague.

DR. VON LÜDINGHAUSEN: May I here...

VON NEURATH: I know nothing about other incidents. Apart from that, I
specifically prohibited the removal of art objects from the Protectorate
to the Reich.

DR. VON LÜDINGHAUSEN: In this connection, I should like to submit an
extract from the interrogation of the former State Secretary Frank,
dated 10 June 1945. This is Number Neurath-154 of my Document Book
Number 5, and I should like to ask the Tribunal to take notice of this
statement.

[_Turning to the defendant._] What happened to the objects of art and
the furniture, which were Czech State property and with which the
Czernin Palace in Prague, which you used as your official residence, was
furnished?

VON NEURATH: This house was the former official residence of the Czech
Foreign Minister, and the partly valuable furnishings belonged to the
Czech State. Since there was no inventory of any sort of these items,
before moving in in the fall of 1939, I called in the Czech director of
the castle administration and the Czech art historian, Professor
Strecki; and I had a very exact inventory taken. One copy of this
inventory was left in my office and another one was deposited with the
administration of the castle. After I left Prague in the autumn of 1941,
I had a record made through my former caretaker and again in the
presence of a representative of the castle administration, Professor
Strecki, that the articles which were mentioned in the inventory were
actually still there.

THE PRESIDENT: I don’t think we need details of the inventory, but there
is one thing I should like to ask. The translation came through to me
that the inventory was made in the fall of 1938. Was that right?

VON NEURATH: 1939. I only wanted to mention that naturally I did not
take any of these articles.

DR. VON LÜDINGHAUSEN: Another point raised by the Czech indictment deals
with the confiscation of the so-called Masaryk houses in various cities
and with the destruction of Masaryk monuments and monuments erected to
other personalities famous in Czech history. What do you know about
that?

VON NEURATH: While I was in office, some of these Masaryk houses were
closed by the Police because they were centers of agitation against
Germany. The destruction or the removal of Masaryk or other Czech
national monuments I had specifically prohibited. Apart from that, I
expressly permitted the laying of wreaths at the grave of Masaryk at
Lanyi, which Frank had prohibited, and this actually took place on a
large scale.

DR. VON LÜDINGHAUSEN: It is further asserted that Czech literature was
suppressed and muzzled to a large extent.

VON NEURATH: The printing and dissemination of Czech anti-German
literature was prohibited of course, just as the further dissemination
of English and French works was prohibited in the entire Reich during
the war. Aside from that, all this material was treated according to the
direct orders of the Propaganda Ministry. However, while I was in
office, there were still many Czech book stores and book-publishing
concerns which published books by Czech authors in large numbers and
disseminated them. The selection of Czech books of every type in the
book stores was considerably larger than the selection of German books.

DR. VON LÜDINGHAUSEN: Could you say anything about the suppression of
Czech cultural life, of theaters, movies, and so forth, to which the
Prosecution refers?

VON NEURATH: There was no question at all of a limitation of the
cultural autonomy of the Czechs, aside from the university problem. In
Prague a great number of large Czech theaters of every description were
open all the time, especially the Czech opera and several theaters. On
the other hand there was only one permanent German theater with daily
performances. There was a constant production of many Czech plays and
operas, and the same applied to music. The well-known Czech Philharmonic
Orchestra at Prague played Czech music primarily and was absolutely
independent regarding its programs.

THE PRESIDENT: Dr. Lüdinghausen, we don’t need details. The defendant
says that theaters and cinema theaters were allowed and there was only
one German theater. We don’t want any further details about it.

DR. LÜDINGHAUSEN: Very well, Mr. President. I asked about these matters
only because they are rather extensively dealt with in the Indictment.

[_Turning to the defendant._] And what about the film industry, Herr Von
Neurath?

VON NEURATH: The same applied to the movie industry. It was even
especially active.

DR. VON LÜDINGHAUSEN: Now, I should like to turn to the alleged
suppression of religious freedom, of which you are being accused in the
Czech indictment. The Czech indictment speaks of a wave of persecution
which inundated the churches and which started immediately when the
German troops marched in to occupy the country. What about that?

VON NEURATH: A systematic persecution of the churches is quite out of
the question. The population was quite free as concerns public worship,
and I certainly would not have tolerated any restrictions along this
line. The former Under State Secretary Von Burgsdorff has testified to
that point here already. It may be true that in individual cases
pilgrimages or certain religious processions were prohibited by the
Police, even though I personally do not remember it clearly. But that
took place only because certain pilgrimages, consisting of many
thousands of people, were exploited as political demonstrations at which
anti-German speeches were made. At any rate, that had actually occurred
several times and had been brought to my knowledge. It is true that a
number of clerics were arrested in connection with the action at the
beginning of the war, which we have already mentioned here. But these
arrests did not take place, because the men were clerics but because
they were active political opponents or people who were political
suspects. In cases of this nature I made special efforts to have these
people released.

My personal connections with the archbishop of Prague were absolutely
correct and amicable. He and the archbishop of Olmütz specifically
thanked me for my intervention on behalf of the Church, as I remember
distinctly. I prevented any measure against the public worship of the
Jews. Every synagogue was open to the time I left in the autumn of 1941.

DR. VON LÜDINGHAUSEN: In connection with the last point, I should like
to put one more question about the position of Jews in the Protectorate.
What can you tell us about it?

VON NEURATH: The legal position of the Jews had to be co-ordinated with
the position of the Jews in the Reich, according to instructions from
Berlin. The directives with regard to this had been sent to me already
in April of 1939. Through all sorts of inquiries addressed to Berlin, I
tried and succeeded in not having the laws go into effect until June
1939, so as to give the Jews the opportunity to prepare themselves for
the imminent introduction of these laws.

The so-called Nuremberg Laws were introduced into the Protectorate, too,
at that time. Thereby the Jews were removed from public life and from
leading positions in the economic life. However, arrests on a large
scale did not take place. There were also no excesses against Jews,
except in a few single instances. The camp at Theresienstadt was not
erected until long after my time of office, and I prevented the erection
of other concentration camps in the Protectorate, too.

DR. VON LÜDINGHAUSEN: The Czech report accuses you of personally
carrying through anti-Jewish measures. They maintain that, first of all,
you charged the Czech Government, that is to say the autonomous
government, with the carrying through of the anti-Jewish laws and that
when Ministerpräsident Elias refused to do so, you personally took the
necessary steps.

VON NEURATH: As I said just now, the introduction of the anti-Jewish
laws came about on Hitler’s direct order, that is to say through the
competent authorities in Berlin. The representation...

THE PRESIDENT: Dr. Von Lüdinghausen, why do you want to go over all this
again? The defendant has given the evidence that he succeeded in putting
off the laws until June 1939 and that then the Nuremberg Laws were
introduced. He has given us the various qualifications which he said he
made; and then you read him the Czech report and try to get him to go
over it all again, it seems to me. It is now quarter past 11.

DR. VON LÜDINGHAUSEN: All right, then, I shall consider the first
question sufficiently answered and we shall not deal with the matter of
confiscation either.

[_Turning to the defendant._] The Czech report further accuses you of
the dissolution of the organizations of the YMCA and YWCA, and the
confiscation of their property in favor of German organizations.

VON NEURATH: I must admit that I do not recall these confiscations at
all. If this dissolution and confiscation took place before I left, it
must have been a police measure only.

DR. VON LÜDINGHAUSEN: The Czech report further mentions the destruction
of Czech economic life and the systematic plundering of Czech stocks of
raw materials and accuses you in that regard. What are the facts with
regard to that?

VON NEURATH: With the establishment of the Protectorate, the Czech
economy almost automatically was incorporated into the German economy.
The export trade, for which Czech industries had worked to a
considerable degree, was stopped for the duration of the war, that is to
say, it had to trade with the Reich.

The Czech heavy industries, especially the Skoda Works and the arms
industry, as direct war industries, were taken over to supplement German
armaments production by the Delegate for the Four Year Plan.

At the beginning I tried especially to avoid selling out of the
Protectorate, which would have been hard on the population. An effective
means for that purpose was the maintenance of the customs boundaries
which existed between Czechoslovakia and Germany. After heated conflicts
with the Berlin economic departments, I succeeded in having the customs
barrier maintained up to October 1940, for another year and a half,
though it had already been rescinded on 16 March 1939.

I believe I am also accused of having been responsible for the removal
of raw materials and the like. In that connection I should like to say
that the office of the Delegate for the Four Year Plan was the only
authority which could take such measures.

DR. VON LÜDINGHAUSEN: In this connection I should like to refer to the
decree which has already been submitted, the decree dated 16 March 1939,
Number Neurath-144 of my Document Book Number 5. In this decree I should
like to call special attention to Articles 9 and 10.

[_Turning to the defendant._] You are further charged with and accused
of the fact that the rate of exchange of Czech kronen to marks was
established as 10 to 1, for in this way the buying out of
Czechoslovakian goods was said to have been favored. Are you responsible
for the establishing of this rate?

VON NEURATH: No. In the decree of 16 March 1939 dealing with the
establishment of the Protectorate—a decree in the drafting of which I
did not take part in any way—it was already stipulated that the rate of
exchange would be determined by the Reich Government. As far as I know,
the same rate was the customary one at the stock exchange and in trade
before the incorporation of the Sudetenland into the Reich as well as
afterwards. An official rate had to be determined, of course, and this
was done through the decree issued by the authorities in Berlin.

DR. VON LÜDINGHAUSEN: In connection with the decree dated 16 March 1939,
which was just mentioned and which is to be found under Number
Neurath-144 of my Document Book Number 5, I should like to call your
attention especially to Article 10 which sets forth: “The ratio of the
two currencies, the Czechoslovakian and the German, to each other will
be determined by the Reich Government.”

[_Turning to the defendant._] The Czech report further accuses you of
the fact that railroad rails allegedly were removed and taken to
Germany. Do you know anything about this matter?

VON NEURATH: I know nothing about this matter and I think this is
certainly an error. I know only that in the year 1940 there were
negotiations between the German Reich railroads and the Czech State
railroads concerning the borrowing of railroad cars and of engines
against remuneration. But the stipulation in this case was that this
rolling stock could be spared by the transport system in the
Protectorate. Aside from that, the railroads in the Protectorate, were
not under my supervision; but they were directly subordinate to the
Transportation Ministry in Berlin.

DR. VON LÜDINGHAUSEN: I should like to refer to Article 8 of the decree
which I have just mentioned, a decree which is found under Number
Neurath-144 of my Document Book 5.

[_Turning to the defendant._] It is further asserted that the Reich
Commissioner at the Prague National Bank stopped all payments for abroad
and confiscated all the stocks of gold and of foreign currencies of the
National Bank.

Did you have anything to do with this matter?

VON NEURATH: I had nothing at all to do with these matters. The Reich
Commissioner for the Prague National Bank was appointed directly by the
Reichsbank in Berlin, or rather by the Ministry of Finance; and he got
his orders from them.

DR. VON LÜDINGHAUSEN: The Czech report states further that you are to be
blamed, or are to be made co-responsible, for the alleged confiscation
of the Czech banks and industrial undertakings by the German economy.

VON NEURATH: The German banks, and to an extent the German industries as
well, had a real interest in getting a firm foothold in the economic
life of the Protectorate. However, this was something which applied long
before the establishment of the Protectorate. Therefore it was not
strange that the big German banks, in particular, used the opportunity
to acquire Czech stocks and securities; and in this way the controlling
interest in two Czech banks together with their industrial holdings were
transferred to German hands in a manner which was economically quite
correct.

I believe the Union Bank is mentioned in the Czech report, a bank which
was taken over by the Deutsche Bank; and I know in this case quite
coincidentally that the initiative did not originate on the German side,
but rather from the Czech Union Bank itself. But neither I nor my
agencies tried to foster this development in any way. Apart from that
all these enterprises had Czech general directors, and in very few cases
were German officials taken in. By far the largest part of all
industrial enterprises remained purely Czech as before.

DR. VON LÜDINGHAUSEN: What was the situation with regard to the alleged
coercive measures which the Prosecution maintains were used against
Czech agriculture? Can you tell something about this and about your
attitude and the measures you took?

VON NEURATH: This chapter belongs to the whole scheme of plans by the
Party and SS, relative to Germanization, which have already been
mentioned. The instrument of this German settlement policy was to be the
Czech Land Office (Bodenamt), which in itself was a Czech office, which
was a survival of the former Czech office for agrarian reform. Himmler
first of all assigned to the Land Office an SS Führer as its provisional
leader.

THE PRESIDENT: The Tribunal does not want to know all the details about
this. The Czech report apparently alleges coercion in agriculture. The
defendant says that it was due, if any, to the Party and the SS; and he
had nothing to do with it. What is the object of his giving us all these
details about the history of agriculture in Czechoslovakia? You must
realize the Tribunal...

DR. VON LÜDINGHAUSEN: Yes, but I should like to point out one thing
only.

[_Turning to the defendant._] The Land Office, which was acting in the
interests of National Socialism, was restaffed by you with new personnel
after a long struggle. I considered it important to clarify this too.

Mr. President, I should like to make a general remark. I said yesterday
that my examination would last another hour. But yesterday, when I left
the session, I found another document book to the indictment which has
forced me to deal in greater detail with individual questions here. And
for this reason, a reason which I could not foresee, I will have to take
additional time.

THE PRESIDENT: Very well, the Tribunal has not taken up the question of
time at the moment.

Why do you have to go into some questions of—I do not know what the
word is, “Amt”—to do with agriculture? Why do you want to go into that?
He, the defendant, said he had nothing to do with it.

DR. VON LÜDINGHAUSEN: Yes, in a way he was connected with it, Mr.
President, insofar as these agricultural efforts were made through the
Land Office.

THE PRESIDENT: If he was connected with it let him explain it. I thought
he said the Party and the SS did it.

DR. VON LÜDINGHAUSEN: Yes, but via the Land Office, and he prevented
this.

Perhaps you can tell us briefly about this, Herr Von Neurath.

VON NEURATH: I believe that according to the statements of the President
of the Court, that is hardly necessary. As a matter of fact, I had no
direct connection with the Land Office. I only succeeded in having a
rather unpleasant leader of this office, a member of the SS, removed.

DR. VON LÜDINGHAUSEN: During your period of office as Reich Protector,
was there any compulsory transportation of workers to the Reich?

VON NEURATH: No. In this connection I shall also be brief.

Compulsory labor did not exist at all while I was in the Protectorate.
There was an emergency service law which was issued by the Protectorate
Government and applied to younger men who were employed in urgently
needed work in the public interest in the Protectorate. Compulsory
deportations of workers to the Reich did not occur in my time. On the
contrary, many young people reported voluntarily for work in Germany,
because labor conditions and wages were better in the Reich than in the
Protectorate at that time.

DR. VON LÜDINGHAUSEN: How did your resignation from office—and this is
my last question—your leaving your office as Reich Protector come
about?

VON NEURATH: First of all I should like to tell you why I remained as
long as I did, in spite of all these occurrences and difficulties. The
reason for it was that I was convinced, and I am still convinced today,
that I had to stay as long as I could reconcile this with my conscience,
in order to prevent this country, which was entrusted to Germany, from
coming under the definite domination of the SS. Everything that happened
to the country after my departure in 1941 I had actually prevented
through my presence; and even if my work was ever so much limited, I
believe that by remaining I not only rendered a service to my own
country but to the Czech people as well, and under the same
circumstances I would not act differently even today.

Apart from this I believed that in time of war, especially, I should
leave such a difficult and responsible office only in case of the utmost
necessity. The crew of a ship does not go below deck and fold their
hands in their laps if the ship is in danger.

That I could not comply with the wishes of the Czechs 100 percent is
something that will be understood by everybody who had to deal with
politics in a practical and not merely theoretical way. And so I believe
that by my persevering in office I prevented much of the misery which
befell the Czech people after I left. This opinion was also shared by a
large number of the Czech population, as I could gather from the
numerous letters which were addressed to me by the Czech people later
on.

DR. VON LÜDINGHAUSEN: And how did it happen that you left, that you
resigned from your office?

VON NEURATH: On 23 September 1941 I received a telephone call from
Hitler asking me to come to headquarters immediately. There he told me
that I was being too mild with the Czechs and that this state of affairs
could not be continued. He told me that he had decided to adopt severe
measures against the Czech resistance movement and that for this purpose
the notorious Obergruppenführer Heydrich would be sent to Prague. I did
everything in my power to dissuade him from this but was not successful.
Thereupon I asked permission to resign, since I could never be
responsible for any activity of Heydrich’s in Prague. Hitler refused my
resignation but permitted me to go on leave. I flew back to Prague and
on the following day I continued my journey home. At the same hour that
I left Prague, Heydrich arrived.

Then I wrote to Hitler from my home and again asked to resign
immediately. When in spite of a reminder I did not receive any answer I
repeated my request, and at the same time I explained that under no
circumstances would I return to Prague, that I had dissolved my office
and I refused to act as Reich Protector from now on. I was not
officially relieved from my office until October 1943.

DR. VON LÜDINGHAUSEN: Mr. President, I should like to conclude my
examination of the defendant with a brief quotation from the Czech
indictment.

THE PRESIDENT: Just one moment, was your going on leave made public?

VON NEURATH: Yes.

DR. VON LÜDINGHAUSEN: Yes, I was just going to quote that, Mr.
President. In that text of the Czech indictment it says:

    “When at last in the second half of September the underground
    Czech revolt committees, with the help of the BBC, began a
    successful boycott campaign against the German controlled press,
    the German authorities seized the opportunity to aim a heavy
    blow at the Czech population. On 27 September 1941 radio station
    Prague gave out the following report:

    “‘Reich Minister Baron von Neurath, Reich Protector of Bohemia
    and Moravia, has found it necessary to ask the Führer for a long
    leave in order to restore his impaired health.’”

Then in conclusion it says:

    “Under these circumstances the Führer agreed to the request of
    the Reich Protector and charged SS Obergruppenführer Heydrich
    with the direction of the office of Reich Protector of Bohemia
    and Moravia during the time of the illness of Reich Minister Von
    Neurath.”

With this my examination is ended, Mr. President.

THE PRESIDENT: From September 1941 until October 1943, did you live on
your own estates, or what?

VON NEURATH: Yes, Mr. President.

DR. VON LÜDINGHAUSEN: My examination is over.

THE PRESIDENT: The Court will adjourn now.

                        [_A recess was taken._]

THE PRESIDENT: Do any of the defendants’ counsel wish to ask the witness
any questions?

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): Is it known to you
that immediately before Germany left the League of Nations, Von Papen
followed Hitler to Munich to persuade him to remain in the League of
Nations?

VON NEURATH: Yes, that is known to me. In fact, I myself induced him to
do so.

DR. KUBUSCHOK: During the time he was Vice Chancellor in 1933 and 1934,
did Von Papen protest in the Cabinet against unfriendly acts of the
German policy toward Austria, as for instance, the introduction of the
1,000-mark embargo?

VON NEURATH: Yes, that line was continuously followed by him and by
other ministers and naturally by myself, too.

DR. KUBUSCHOK: Did Hitler mention to you that this attitude of Papen’s
in the Austrian problem induced him to transfer the mission in Vienna to
Papen after the murder of Dollfuss?

VON NEURATH: Yes, Hitler did speak about that.

DR. KUBUSCHOK: Did Hitler discuss with you the reasons why he addressed
the letter of 26 July 1934 to Papen, announcing that Papen would be sent
to Austria?

VON NEURATH: Yes, but the way it happened was as follows: When Hitler
told me about his intention to send Papen to Vienna, I reminded him
that, in order to give the latter any weight, he should first of all,
after the events of 30 June, clear up the relationship between himself,
Hitler, and Papen, and clear it up publicly. This letter which was read
here in Court can be traced to that.

DR. KUBUSCHOK: In 1937 you paid a visit to the Austrian Government which
led to demonstrations. Were you and Von Papen surprised by these
demonstrations, and did you agree with them?

VON NEURATH: The demonstrations were a complete surprise to me,
especially because of their tremendous size. They certainly did not
please me, because they cast a certain shadow on the discussions between
Herr Von Schuschnigg and myself.

DR. KUBUSCHOK: Then, the last question: Before Schleicher’s Government
was formed there was a meeting of the Cabinet on 2 December 1932. The
day before Papen had been given orders by Hindenburg to send the
Parliament on leave and to form a new government. Is it correct that
Papen reported on this matter to the Cabinet and that Schleicher, as
Reichswehrminister, made a statement to the effect that this would lead
to civil war and that the forces of the Wehrmacht were too weak to cope
with such a civil war?

VON NEURATH: Yes, I remember this occurrence very accurately. We were
all somewhat surprised at Schleicher’s statement. However it was so well
founded that we had to accept it as true.

DR. KUBUSCHOK: Thank you.

THE PRESIDENT: Do any other defendants’ counsel wish to ask any
questions?

[_There was no response._]

The Prosecution?

SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom):
At the time about which Dr. Kubuschok has just been asking you, in the
second half of 1932, did you know that President Von Hindenburg, the
Defendant Von Papen, and General Von Schleicher were discussing and
considering very hard what would be the best method of dealing with the
Nazi Party?

VON NEURATH: No. As I have already testified, I had no connection in
that respect. I knew absolutely nothing about all these negotiations.

SIR DAVID MAXWELL-FYFE: I want to make it clear, I am not suggesting you
were in the negotiations. But didn’t you know that the problem as to how
to deal with the Nazi Party was exercising the minds of the President
and the Defendant Von Papen and General Von Schleicher; that it was a
very urgent problem in their minds?

VON NEURATH: Yes, I knew that.

SIR DAVID MAXWELL-FYFE: And again, do not think, Defendant, I am
suggesting that you were in the negotiations. You may take it—well, I
will make all the suggestions perfectly clear.

You knew that in the end the method which commended itself to President
Von Hindenburg, to the Defendant Von Papen, and to General Von
Schleicher was that there should be a government with Hitler as
Chancellor, but well brigaded by conservative elements, in harness with
conservative elements; that was the plan that was ultimately resolved
on? You knew that much, I suppose, didn’t you?

VON NEURATH: Yes, but the plan was not quite like that. At that time,
the time you are talking about, there was only mention of the fact that
we were obliged to bring the Nazi Party into the Government.

SIR DAVID MAXWELL-FYFE: But eventually, when the Nazi Party came in, on
30 January 1933, the plan was that it would be well harnessed to
conservative elements. That was the idea in President Von Hindenburg’s
mind, was it not?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: And you were one of the conservative and stable
elements, if I understand you rightly; isn’t that so?

VON NEURATH: Yes. It has been explained here that it was the special
wish of President Von Hindenburg that I should remain in the Government.

SIR DAVID MAXWELL-FYFE: In order to keep Hitler’s Government
peace-loving and respectable. Is that a fair way of putting it?

VON NEURATH: Yes, so as to prevent Hitler’s revolutionary movement in
general from exercising their methods too much within the Government,
too.

SIR DAVID MAXWELL-FYFE: And, Defendant, you have told us that up to this
time you had been a diplomatist. When you became a Minister, did you not
think that you had some responsibility for keeping the Government
respectable and peace-loving as a Minister of the Reich?

VON NEURATH: To be sure, but the question was only how far it was in my
power to accomplish this.

SIR DAVID MAXWELL-FYFE: I don’t want to go into the workings of your
mind too much, I just want to get this clear. You realized that as a
Foreign Minister, and as a well-known figure to all the Chancelleries of
Europe, that your presence in the Government would be taken throughout
Europe, as a sign of your approval and your responsibility for what the
Government did, did you not?

VON NEURATH: I doubt that very much. Perhaps one might have hoped so.

SIR DAVID MAXWELL-FYFE: Well now, just let’s consider it. Is it your
case that up to November of 1937 you were perfectly satisfied with the
peace-loving intentions and respectability of the Government?

VON NEURATH: I was convinced of the peaceful intentions of the
Government. I have already stated that. Whether I was satisfied with the
methods...

SIR DAVID MAXWELL-FYFE: What about respectability? By “respectability” I
mean the general standard of decency that is required by any government,
under which its people are going to be reasonably happy and contented.
Were you satisfied with that?

VON NEURATH: I was by no means in agreement with the methods, above all
in connection with the domestic policy.

SIR DAVID MAXWELL-FYFE: Well, I would just like to look at that for a
moment. Did you know about the “Brown Terror” in March of 1933, some 6
weeks after the Government was formed?

VON NEURATH: I only knew of the boycott against the Jews, nothing else.

SIR DAVID MAXWELL-FYFE: Do you remember the affidavit that has been put
in evidence here, made by the American Consul, Mr. Geist, Document
1759-PS, Exhibit USA-420?

VON NEURATH: May I see it?

SIR DAVID MAXWELL-FYFE: Well, just let me remind you. It is a long
affidavit, and there are only one or two parts I want to put to you.

Mr. Geist gives detailed particulars of the bad treatment, the beating,
and assaulting, and insulting, and so on, of Jews as early as March
1933. Did you know about that?

VON NEURATH: I know of these occurrences; I do not know this affidavit,
I have not seen it, but I do know about the occurrences from complaints
made by foreign diplomatic representatives. And according to them—and
as concerns my attitude to these events—I repeatedly applied to Hitler
and urgently implored him to have them stopped. But I do not know
anything more about the details.

SIR DAVID MAXWELL-FYFE: Just leaving that affidavit for the moment, as
Foreign Minister, you would receive—you did receive, did you not, a
synopsis or account of what was appearing in the foreign press?

VON NEURATH: Yes, that I did but whether I received all of those things
I do not know.

SIR DAVID MAXWELL-FYFE: Just let me take an example. You had been
Ambassador at the Court of St. James from 1930 to 1932, if my
recollection is right; had you not?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: And you realized—whether you agreed with what
was in them or not—the London _Times_ and the _Manchester Guardian_
were newspapers that had a great deal of influence in England, didn’t
you?

VON NEURATH: Yes, yes.

SIR DAVID MAXWELL-FYFE: Did you know that in April 1933 both these
newspapers were full of the most terrible stories of the ill-treatment
of Jews, Social Democrats, and Communists in Germany?

VON NEURATH: Yes, that is quite possible. I cannot remember it any more
now; but those were certainly the very cases which I brought up before
Hitler, drawing his attention to the effect that this was having abroad.

SIR DAVID MAXWELL-FYFE: Well, I just want to consider the extent which
these papers were alleging. As early as the 12th of April 1933 the
_Manchester Guardian_ was saying:

    “The inquirer, by digging only an inch below the surface, which
    to the casual observer may seem tranquil enough, will, in city
    after city, village after village, discover such an abundance of
    barbarism committed by the Brown Shirts that modern analogies
    fail...”—describing them as an instrument—“...of a Terror that
    although wanton is systematic—wanton in the sense that unlike a
    revolutionary Terror it is imposed by no outward necessity, and
    systematic in the sense that it is an organic part of the
    Hitlerite regime.”

Did you know that this and quotations like these were appearing in
responsible British papers?

My Lord, that is D-911, which is the collection of extracts and, with
Mr. Wurm’s affidavit, will be Exhibit GB-512.

[_Turning to the defendant._] Did you know that was the line that was
being taken, that it was systematic in the sense of being an organic
part of the Hitler regime?

VON NEURATH: No, in that sense certainly not.

SIR DAVID MAXWELL-FYFE: Did you know that the British paper, the
_Manchester Guardian_, was quoting, “...an eminent German conservative,
who is in close touch with the Nationalist members of the German
Government, and certainly more sympathetic to the Right than to the
Left...” has given the number of victims as 20,000—as many as 20,000 in
April? Did you know that the figure was being put that high?

VON NEURATH: No, and I do not believe it, either.

SIR DAVID MAXWELL-FYFE: Well, let us see what the German press was
saying.

On the 24th of April 1933 the _Times_ was quoting the _Hamburger
Fremdenblatt_, which, in turn, was invoking official sources and stating
that there were 18,000 Communists in prison in the Reich and that the
10,000 prisoners in Prussia included many social intellectuals and
others.

Would the _Hamburger Fremdenblatt_, which had a very long career as a
newspaper, if it misquoted official sources under your Government in
April 1933, have misrepresented the position? It would not, would it?

VON NEURATH: That I do not know, but I do know that a lot of trouble is
always being stirred up by means of figures.

SIR DAVID MAXWELL-FYFE: But Defendant, here is a figure quoted, as far
as I know, by a responsible Hamburg paper, as an official figure,
requoted by the London _Times_, which is the principal paper in England.
Wasn’t that sufficiently serious for you to bring it up in the Cabinet?

VON NEURATH: I am very sorry, but with all respect to the papers—and
even the London papers—they do not always tell the truth.

SIR DAVID MAXWELL-FYFE: No. That is a perfectly reasonable comment.
Newspapers, like everyone else, are misinformed. But when you had a
widespread account of terrible conditions giving large numbers, did you
not, as one of the respectable elements in this Government, think that
it was worthy of bringing it up in Cabinet and finding out whether it
was true or not?

VON NEURATH: How do you know that I did not do that?

SIR DAVID MAXWELL-FYFE: That is what I am asking. Did you bring it up,
and what was the result when you did?

VON NEURATH: I have already told you before that I always remonstrated
about these incidents, with Hitler—not in the Cabinet, but with Hitler.

SIR DAVID MAXWELL-FYFE: That is not what I asked you. You see,
Defendant, what I asked you was why you did not bring it up in the
Cabinet. Here was a Cabinet established with conservative elements to
keep it respectable. Why did you not bring it up in the Cabinet and try
and get the support of Herr Von Papen, Herr Hugenberg, and all the other
conservative gentlemen in the Cabinet of whom we have heard? Why did you
not bring it up?

VON NEURATH: For the very simple reason that it seemed to be more
effective to tell Hitler directly.

SIR DAVID MAXWELL-FYFE: In April 1933, some 2 months after it was
formed, are you telling the Tribunal that you did not think it was worth
while to bring a matter up in the Reich Cabinet? Within 2 months of
Hitler coming into power, it had become so “Führer-principled” that you
could not bring it up in the Cabinet?

VON NEURATH: I repeat—and after all I alone should be the one to
judge—that I considered direct representations made to Hitler more
effective.

SIR DAVID MAXWELL-FYFE: I see. Well, now, I just want—I do not suppose
you were interested, but did you know about the putting into
concentration camps of any of the gentlemen that I mentioned to the
Defendant Von Papen: Herr Von Ossietzski or Herr Mühsam or Dr. Hermann
Dunker, or any of the other left-wing writers and lawyers and
politicians? Did you know that they had gone to a concentration camp
from which they never returned?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: You did not know at all?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: At any rate, you knew—as your documents have
shown—when you went to London in June, you knew very well how, at any
rate, foreign opinion had crystallized against Germany because of the
treatment of the Jews and the opposition parties, did you not, when you
went to the world economic conference in June?

VON NEURATH: Yes. That was mentioned by me in a report that was read in
Court.

SIR DAVID MAXWELL-FYFE: Now you say that your reaction was to go to
Hitler and protest. I just want to look at what the existing documents
show that you did. Now, let us take April, first of all. Would you look
at Document D-794?

[_The document was handed to the defendant._]

My Lord, it is Document Book 12a, Page 8. It will be Exhibit GB-513.

Now, this is a letter from you to Hitler dated the 2d of April 1933:

    “The Italian Ambassador telephoned me last night and informed me
    that Mussolini had declared himself prepared to deny, through
    the Italian delegations abroad, all news about the persecution
    of the Jews in Germany that had been distorted by propaganda, if
    we should consider this course useful. I thanked Herr Cerruti,
    also on your behalf, and told him that we would be glad to
    accept his offer.

    “I regard this friendly gesture of Mussolini’s as important
    enough to bring it to your notice.”

What did you think had been distorted by propaganda?

VON NEURATH: Yes, please read this part. Here it says, “the news had
been distorted by propaganda.” That is what it is about.

SIR DAVID MAXWELL-FYFE: That is what I was so interested in, Defendant.
What did you think had been distorted, and how much knowledge had you,
so that you could decide whether the news had been distorted or not?

VON NEURATH: That I really cannot tell you any more today.

SIR DAVID MAXWELL-FYFE: You knew that Jews had been beaten, killed,
taken away from their families, and put into concentration camps and
that their property had been destroyed and was beginning to be sold
under value. You knew that all these things were happening, did you not?

VON NEURATH: No, certainly not at that time. That they were beaten, yes,
that I had heard; but at the time no Jews were murdered or perhaps only
once in one individual case.

SIR DAVID MAXWELL-FYFE: Well, so you see that the _Times_ and
_Manchester Guardian_ of that date gave the most circumstantial examples
of typical murders of Jews? You must have seen that; you must have seen
that the foreign press was saying it. Why did you think that it was
distorted? What inquiry did you make to discover whether it was
distorted?

VON NEURATH: Who—who—who—who gave me information
about—about—about—murders?

SIR DAVID MAXWELL-FYFE: I am putting it to you that it was in the
foreign press. I have given you the two examples from the press of my
own country; and obviously from what Signor Mussolini was saying, it was
in the press of other countries. You must have known what they were
saying. What inquiries did you make to find out whether it was true or
not?

VON NEURATH: I used the only way possible for me, namely through the
police authorities concerned.

SIR DAVID MAXWELL-FYFE: Did you ask Himmler, or did you ask the
Defendant Göring?

VON NEURATH: Most certainly not.

SIR DAVID MAXWELL-FYFE: What? You asked Himmler? Or did you ask the
Defendant Göring? Why not? Why not? He was the head, inventing the
Gestapo and the concentration camps at that time. He would have been a
very good man to ask, would he not?

VON NEURATH: The man who could have given me information was the chief,
the supreme head of the Police, and it was in no way personally...

SIR DAVID MAXWELL-FYFE: Did you ask the Defendant Frick?

VON NEURATH: In any case, I did not ask him personally.

SIR DAVID MAXWELL-FYFE: Now...

VON NEURATH: Certainly not personally.

SIR DAVID MAXWELL-FYFE: May I suggest to you that I do not want to take
up time? Why did you not take the trouble to ask Göring or Frick or
anyone who could have given you, as I suggest, proper information?

Would you look at Document 3893-PS?

[_The document was handed to the defendant._]

The Tribunal will find it at Page 128 of Document Book 12a. My Lord,
that will become Exhibit GB-514.

This is the _Völkischer Beobachter_, quoting you on the 17th of
September 1933, on the Jewish question:

    “The Minister had no doubt that the stupid talk abroad about
    purely internal German affairs, as for example the Jewish
    problem, will quickly be silenced if one realizes that the
    necessary cleaning up of public life must temporarily entail
    individual cases of personal hardship but that nevertheless it
    served only to establish all the more firmly the authority of
    justice and law in Germany.”

Was that your view in September 1933, of the action against the Jews and
against the left-wing sympathizers up to that time, that it was a
“necessary cleaning up of public life,” which would, of course,
temporarily involve “individual cases” of hardship, and that was
necessary “more firmly” to establish “the authority of justice and law
in Germany”? Was that your view?

VON NEURATH: I told you during—during—during my—I think it was the
day before yesterday in answer to the question of what my attitude was
toward the Jewish problem, that in view of the inundation and domination
of public life in Germany by Jews which occurred after the last war, I
thought it absolutely right to have these things either eliminated or
restricted. That is what I am referring to here.

SIR DAVID MAXWELL-FYFE: So that it is right—I mean, you are not running
away from what you said on the 17th of September 1933—that you thought
the treatment of the Jews in 1933 a “necessary cleaning up of public
life” in Germany? Are we to take it that your view then is your view
now, and you do not deviate from it at all? Is that right?

VON NEURATH: That is still my view today, do you not see, only it should
have been carried out by different methods.

SIR DAVID MAXWELL-FYFE: All right. Well, we will not go into discussions
of it.

Am I to take it that you knew and approved of the breakdown of political
opposition?

VON NEURATH: No, that is...

SIR DAVID MAXWELL-FYFE: Well, then, let us take it by stages. Did you
believe in the prescribing, the making illegal of the Communist Party?

VON NEURATH: In those days, most certainly, because you have heard, have
you not, that we were facing civil war.

SIR DAVID MAXWELL-FYFE: Very well. You agreed with that. Did you agree
with the breaking down and making illegal of the trade unions?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: What did you do to protest against the breaking
down of the trade unions?

VON NEURATH: That was in a sphere—this sphere did not concern me at
all. I was Foreign Minister and not Minister of the Interior.

SIR DAVID MAXWELL-FYFE: I see. Well, again, I am not going to argue with
you. You thought it was perfectly right as Foreign Minister to remain
and give your support and authority to a government which was doing
something of which you disapproved, like breaking down the trade union
movement. Is that how we are to take it?

VON NEURATH: Yes. Did you ever hear that a minister...

SIR DAVID MAXWELL-FYFE: Now what about...

VON NEURATH: I would like to say, did you ever hear that every cabinet
minister must leave the cabinet if he does not agree with one particular
thing?

SIR DAVID MAXWELL-FYFE: Every cabinet minister for whom I have any
respect left a cabinet if it did something of which he morally
disapproved, and I understood from you that you morally disapproved of
the breaking down of the trade union movement. If I am wrong, correct
it. If you did not disapprove, say so.

VON NEURATH: I did not think that it was immoral. It was a political
measure, but not an immoral one.

SIR DAVID MAXWELL-FYFE: Then let us take Number 3, take the Social
Democratic Party, that was a party which had taken a great share in the
Government of Germany and of Prussia for the years since the war. Did
you think it right, morally right, to make that party illegal and unable
to take any further share in the carrying on of the country?

VON NEURATH: No, certainly not. But I do not at all know...

SIR DAVID MAXWELL-FYFE: Let us get it clear. Did you think it right or
not?

VON NEURATH: I just told you “No” but I do not at all know whether
you...

SIR DAVID MAXWELL-FYFE: What did you do to protest against that? What
did you do to protest against the dissolution of the Social Democratic
Party?

VON NEURATH: The most I could do against this dissolution was to state
my objections.

SIR DAVID MAXWELL-FYFE: To whom did you state your objection against the
dissolution of the Social Democratic Party?

VON NEURATH: To Hitler, again and again.

SIR DAVID MAXWELL-FYFE: Again and again you didn’t raise the dissolution
of the parties, the opposition parties? You never raised that in the
Cabinet; that is right, isn’t it?

VON NEURATH: I cannot remember whether this question was discussed in
the Cabinet; I do not know any more.

SIR DAVID MAXWELL-FYFE: I see. All right. Let us just pass to another
aspect and still on 1933. I just want you to have in mind what was
happening in 1933. Did you know that after you had announced that
Germany was leaving the Disarmament Conference and the League of
Nations, that orders for military preparations to deal with the
possibility of war, as consequent on that action had been got out?

VON NEURATH: No. In 1932-1933 I knew nothing about it.

SIR DAVID MAXWELL-FYFE: In 1933, yes, it started—in Document C-140,
Exhibit USA-51—on the 25th of October 1933. Now, Defendant, you were
Foreign Minister. Are you telling the Tribunal that neither had Hitler
nor Marshal Von Blomberg—I think he was Reichswehrminister—that none
of them told you, as a result of this action, “we shall have to have the
preparations ready in case sanctions, including military sanctions, are
imposed on Germany.” Did none of them tell you that that was to be the
result of your move in foreign policy?

VON NEURATH: No, nor was there any action to be feared.

SIR DAVID MAXWELL-FYFE: I see. Well, now it is rather—you will agree
with me—it is rather odd not to inform the Foreign Minister of the
possible consequences of his policy in the military preparations you are
taking to deal with it; it is rather odd, isn’t it in any system of
government, of totalitarian, democratic, or anything you like, it is
rather odd not to tell the Foreign Minister what you are doing in the
way of military preparations, to deal with his policy, isn’t it?

VON NEURATH: I certainly had to decide on the opinion as to whether any
danger threatened from our withdrawal from the League of Nations and the
Disarmament Conference, that is, I had to decide whether this might have
any probable consequences. The military had their own opinion, and
presumably—but I do not know, anyhow, I was not informed; but there
were certain discussions amongst the General Staff, I assume.

SIR DAVID MAXWELL-FYFE: Well, now, I just want to sum up for 1933 and I
want to do that quickly. May I take it, that up to the end of 1933,
despite these matters which I have put to you, that you were perfectly
satisfied with the respectability and peace-loving intentions of the
Government; is that right?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Well, now, just let us turn to 1934. You
remember your conversation with Mr. Dodd, the American Ambassador, which
you mentioned in your Document Book Number 1, at Page 54. It was on the
28th of May 1934; and Mr. Dodd had told you, apparently, what he had
said to Hitler about the way Americans are trying to control
profiteering by great financial interests. He said he was glad
that—then he says that you said that you were glad that he had informed
Hitler and then Mr. Dodd added “that the Chancellor had not agreed with
me.” Then he says:

    “Von Neurath was silent for a moment after my remarks. It was
    plain that he was entirely of my way of thinking. He begged me
    to say to Washington that the outbreak was entirely contrary to
    the German Government purpose, but he did not commit himself on
    Hitler.”

What did you mean by that, “...that the outbreak against Jews was
entirely contrary to German Government purpose...”?

VON NEURATH: By that I wanted to say that the members of the Cabinet,
the majority of them, were against these methods. Apart from that, I can
add that I had just asked Mr. Dodd to go and see Hitler personally so as
to give backing to the suggestions I was making to Hitler. I took him
there.

SIR DAVID MAXWELL-FYFE: But did you know, in May 1934, that the German
Government was going in for systematic and virulent anti-Semitism,
didn’t you know that?

VON NEURATH: Anti-Semitic propaganda, I knew mainly from Herr Goebbels’
speeches.

SIR DAVID MAXWELL-FYFE: Yes; well, let us pass to something a little
more concrete. Had you any reason for disliking General Von Schleicher
or General Von Bredow?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: What was the effect on your mind of these two
gentlemen and Frau Von Schleicher being killed in the blood purge of the
30th of June 1934?

VON NEURATH: I hardly need to answer that. Of course, I was repulsed by
it, that is clear; but then I told you the other day that unfortunately
in the case of such a revolt, innocent people always have to suffer as
well.

SIR DAVID MAXWELL-FYFE: I see. But just let us get it clear. You told
the Tribunal the other day that you thought—and had some reason for
thinking—that there was a movement in the SA, that is, a movement led
by Röhm and Ernst, and I suppose people that you would consider
undesirable, of that sort. What reason had you to suppose that General
Von Schleicher and General Von Bredow had been in a conspiracy, if any?

VON NEURATH: I had no reason at all, and I do not believe today that
they were plotting.

SIR DAVID MAXWELL-FYFE: Did you hear about the unfortunate way in which
Herr Von Papen kept on losing secretaries at the same time? You
remember, you know.

VON NEURATH: Exactly the same.

SIR DAVID MAXWELL-FYFE: Do you know that Herr Von Bose and Jung were
killed, Von Tschirschky was arrested, and two other gentlemen were also
arrested? Did you hear about that?

VON NEURATH: Yes, I did, through Herr Von Papen.

SIR DAVID MAXWELL-FYFE: And did you regard the blood purge of the 30th
of June as just another element in the necessary cleaning up of public
life?

VON NEURATH: To the extent that it was carried out with all the outrages
and murders of innocent people, most certainly not.

SIR DAVID MAXWELL-FYFE: Why did you go on in a government that was using
murder as an instrument of political action?

VON NEURATH: I have already told you twice that in the case of such
revolutions such mishaps cannot be avoided, most unfortunately.

SIR DAVID MAXWELL-FYFE: I see. Well, now, let us take just another of
your 1934 experiences. You knew about the terroristic acts that were
going on in Austria in May and June of 1934, did you not? And by
“terroristic acts”—don’t let us have any doubt about it—what I mean is
causing explosions in Austrian public utilities and railways and things
like that. I mean dynamite. I don’t mean anything vague. You knew that
such acts were going on in Austria in May and June 1934, did you not?

VON NEURATH: Yes, I heard about it, and I always opposed that sort of
thing because I knew that it was done by Nazis; and let me say once
more, mostly by Austrian Nazis.

SIR DAVID MAXWELL-FYFE: What position did Herr Köpke have in your
Ministry on the 31st of May 1934?

VON NEURATH: He was the Ministerial Director.

SIR DAVID MAXWELL-FYFE: Ministerial Director: Quite a responsible
position, was it not?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Do you remember Herr Köpke reporting to you on
the 31st of May 1934, on a visit of Baron von Wächter?

VON NEURATH: No, I cannot remember that.

SIR DAVID MAXWELL-FYFE: Well, just think; you know. Baron von Wächter
was one of the leaders of the Putsch against Dollfuss 6 weeks later on
the 25th of July. Don’t you remember Herr Köpke making a report to you
and you passing it on to Hitler?

VON NEURATH: No, I cannot remember that.

SIR DAVID MAXWELL-FYFE: Let’s refresh your memory if you don’t remember
it. Would you look at Document D-868? It will become Exhibit GB-515.
Just look at it. I will read it over, but just look at the signatories
carefully; and if you will be good enough to look at the top, I think
you will find on the original, there are your own initials; and on the
left hand side there is a note: “The Reich Chancellor has been informed
6/6.” That is on the 6th of June. That is initialed “L” by Lammers—Dr.
Lammers. Then there is a note below that: “From the Reich Chancellor on
6th June,” also initialed by Lammers I think. And on the other side you
will see there is a note which is certainly initialed “Lammers.”
“Habicht is coming today... L 6/6.” And this memorandum comes back from
the Reich Chancellor to the Foreign Office on the same day. Now just
let’s see what report you were getting from Austria and passing on to
Hitler. We will omit, unless you want it particularly, a description of
Baron von Wächter’s fresh, youthful appearance in Paragraph 1; but it
goes on to say:

    “His statements were obviously made in full consciousness of
    serious responsibility. His estimation of the affairs and
    personalities that came under review was clear and definite.
    Herr Von Wächter drew up for me, too, a picture of the situation
    in Austria which was, in some of its colors, even darker and
    more serious than it had appeared to us here up till now. The
    extremist tendencies of the National Socialists in Austria were
    constantly on the increase. Terrorist acts were multiplying.
    Regardless of who actually undertook the demolitions and other
    terrorist acts in individual cases, each such act provoked a new
    wave of extremism and also of desperate acts. As Herr Von
    Wächter repeatedly and sadly stressed, uniformity of leadership
    was lacking. The SA did what it wanted and what it, for its
    part, considered necessary. The political leadership at the same
    time introduced measures which sometimes meant the exact
    opposite. Thus the great terrorist action, as the result of
    which the railway lines leading to Vienna were blown up, was by
    no means committed by Marxists but by the Austrian SA and indeed
    against the wishes of the political leadership which, as he
    believed, did not participate in any way either in the act or
    its preparation. Such is the picture as a whole. In detail, in
    individual provinces and districts, the confusion was, if
    possible, even greater.”

Then he says that the main seat of unrest is Carinthia, and where
conditions were worst. And then he says:

    “Herr Von Wächter thought that here improvements must be
    introduced most speedily, that is, by means of the
    centralization of all forces active in the interests of National
    Socialism both in and outside Austria. Personal questions should
    play no part here. The decisive word in this connection could,
    of course, be given only by the Führer himself. He, Wächter, was
    in complete agreement with Herr Habicht on all these matters. As
    far as he knew, Herr Habicht had already succeeded in having a
    brief conversation with the Reich Chancellor today.”

Now just let’s pause there for a moment. Herr Habicht was appointed
about that time press attaché at the German Embassy in Vienna. The
appointment of Herr Habicht as press attaché would be done either by you
or with your approval, would it not? It was under your department?

VON NEURATH: Right now I no longer know if Herr Habicht—Herr Habicht
was the National Socialist leader (Landesleiter) for Austria in Munich
and whether or not he went to Vienna as press attaché I do not know.

SIR DAVID MAXWELL-FYFE: Well, you can take it that he went to Vienna as
press attaché at this time, at the end of May 1934; and what I am asking
you is, was it not either at your order or with your approval that he
was given a post which gave him diplomatic immunity in the middle of his
plottings?

VON NEURATH: If Herr Habicht was really there, this happened neither
with my knowledge nor with my approval; but presumably it was arranged
by the Ministry of Propaganda to whom these press men were subordinated.

SIR DAVID MAXWELL-FYFE: Well, you will agree with me, Defendant, that
this is not a very pleasant document; it does not describe a very
pleasant state of affairs. Let me remind you, this came, from your
Ministerial Director to you and went on to the Führer and came back from
Dr. Lammers with a note: “Habicht is coming today.” Surely as...

VON NEURATH: To the Führer?

SIR DAVID MAXWELL-FYFE: Yes, yes.

VON NEURATH: Besides, Mr. Prosecutor, I want to point out to you that
here only the Austrian National Socialists are being discussed. With
them I had nothing at all to do.

SIR DAVID MAXWELL-FYFE: What I am pointing out to you is that the
document, this Foreign Office document goes to the Reich Chancellery; it
comes back on the 6th of June with a note from Dr. Lammers saying,
“Habicht is coming today.” You must have known all about Habicht on the
6th of June. It is mentioned in this report.

VON NEURATH: Not at all. I have this note from Lammers which means that
Habicht was coming to see the Reich Chancellor. And this report from my
Ministerial Director I immediately passed on to the Reich Chancellor to
show him what the conditions were in Austria. That was the reason.

SIR DAVID MAXWELL-FYFE: But you remember Herr Von Papen giving evidence
a few days ago; and when I asked him who were the leading Reich German
personalities who influenced the Putsch in Austria in July 1934, he
thought for a long time and the only leading Reich German personality
that he could remember as influencing the Putsch was this very Herr
Habicht?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Well then, what I am putting to you is—and
pausing there to get it—that you knew very well, on the 6th of June
1934, that Herr Habicht, this leading Reich personality according to the
Defendant Von Papen, was organizing revolution in Austria, didn’t you?

VON NEURATH: Whatever makes you suppose a thing like that? Herr Habicht
never came to see me. He went to see the Reich Chancellor.

SIR DAVID MAXWELL-FYFE: You saw this report. This is a report of your
Ministerial Director. I have just read what Von Wächter thought.

VON NEURATH: There is not one word about Herr Habicht in it.

SIR DAVID MAXWELL-FYFE: Yes, I just read that to you. May I remind you:

    “The decisive word in this connection could of course be given
    only by the Führer himself. He, Wächter, was in complete
    agreement with Herr Habicht on all these matters.”

In other words, what Wächter is putting to the Foreign Office were the
views of Habicht no less than himself.

VON NEURATH: Yes, that is certainly in there. Well, all these terrorist
acts and all these disturbances which are described in this document
were brought to the attention of the Reich Chancellor by myself.

SIR DAVID MAXWELL-FYFE: Well now, just look what the report says at the
foot of the page:

    “But when nothing happened in the meantime, and on the other
    hand the counter measures of the Austrian Government grew more
    brutal and severe from day to day, the radical elements made
    themselves felt once more and came forward with the statement
    that the Chancellor had issued his order only for tactical
    reasons and was inwardly in agreement with every manly act of
    opposition and had in view, as his own political aim, merely the
    weakening of Dollfuss’ hateful system, though in a way which
    should be as unobtrusive as possible to the outside world. They
    are now working with this argument.”

Listen to the next bit, his suggestion to you, the nearest warning of
trouble which any Foreign Minister ever heard of:

    “One constantly stumbles on this idea during discussions and it
    is secretly spreading. A change must be made soon and a uniform
    leadership created. Otherwise, as Herr Von Wächter concluded his
    impressive description, a disaster may occur any day which would
    have the worst possible consequences in foreign policy, not only
    for Austria alone, but above all for Germany herself.”

And then, dramatically, in the middle of the conversation, Herr Von
Wächter receives a telephone message that he had better not go back to
Vienna or he will be arrested on his arrival; and within 6 weeks he had
started the Putsch and Chancellor Dollfuss had been shot. Do you
remember now? Did you not appreciate, at the beginning of June 1934,
that there was the greatest danger of an uprising and trouble in
Austria?

VON NEURATH: Yes, quite definitely so. That is the very reason why I
sent the report to the Chancellor. I could not interfere in Austria.

SIR DAVID MAXWELL-FYFE: Perhaps you can tell me, on the question on
which the Defendant Von Papen was unable to specify, who, in your
opinion, were the other prominent Reich German personalities who were
behind the Dollfuss Putsch in Austria? You say you were not. Who, in
your opinion, were these personalities that Herr Von Papen mentions as
being behind the Dollfuss Putsch?

VON NEURATH: I know absolutely none. I know only Habicht, and him I knew
only as a person against whom I protested to Hitler because of his
inflammatory actions. Apart from him I did not know any Reich Germans.
The others were all Austrian National Socialists who have been mentioned
innumerable times during the Trial but whom I did not know.

SIR DAVID MAXWELL-FYFE: I am not mentioning them. I am mentioning the
Defendant Von Papen’s prominent Reich German personalities, and I am
trying very hard to find out who they were Are you taking the same line,
that the only one you can remember is the press attaché, Herr Habicht?
Is that all you can help the Tribunal in this matter?

VON NEURATH: I have already said—and that will have to suffice—I do
not know anyone.

SIR DAVID MAXWELL-FYFE: Is it your opinion that your Minister, Dr.
Rieth, knew nothing about this, despite what Mr. Messersmith says on
that point? Do you think Dr. Rieth knew nothing about the Putsch?

VON NEURATH: I cannot tell you to what extent Herr Rieth was informed.
You know, however, that when he acted ostentatiously later on that I
recalled him right away. Apart from that, I always forbade the ministers
to meddle in such matters.

SIR DAVID MAXWELL-FYFE: You haven’t any doubt in your own mind that Dr.
Rieth knew all about the impending Putsch, have you?

VON NEURATH: Oh yes, I have considerable doubts that he knew all about
it. I do not believe so because his whole character was not at all like
that.

SIR DAVID MAXWELL-FYFE: Well now, at any rate, you knew on the 25th of
July that the Austrian Nazis had made this Putsch and had murdered
Dollfuss?

VON NEURATH: That is not exactly a secret.

SIR DAVID MAXWELL-FYFE: No, I know it. A lot of these things were not
secrets. What I am interested in was your knowledge—when you found out.

VON NEURATH: Afterward, yes.

SIR DAVID MAXWELL-FYFE: But didn’t that give you any qualms about
remaining in a government which had extended its policy of murder from
at home to abroad, through the Party elements in Austria?

VON NEURATH: If I were responsible for every single murderer, for every
single German murderer who was active abroad, then I would have had a
lot of work to do, would I not?

SIR DAVID MAXWELL-FYFE: You knew, Herr Von Neurath—and I shall remind
you how in a moment—you knew that the Austrian NSDAP was in close touch
with, and acting under, the orders of Hitler all the time when Hitler
was head of your Government; you knew that perfectly well, didn’t you?

VON NEURATH: He was the chief of the NSDAP. It is quite natural that
they were collaborating with him.

SIR DAVID MAXWELL-FYFE: Yes. Now there is just one other point...

VON NEURATH: Yes. I want to tell you another thing: I continuously
remonstrated with Hitler, together with Herr Von Papen, about the fact
that this Herr Habicht was doing the things he was.

SIR DAVID MAXWELL-FYFE: We will take that up in a moment. I just want to
get one point of fact. Does this accord with your recollection: I have
been through all the reports of the Defendant Von Papen; and apart from
three personal reports, two dealing with Herr Von Tschirschky and one
dealing with abuse of Hitler, which is of no political significance, we
have 28 reports. Nineteen of these reports are marked as being copies to
the Foreign Office. Is that in accord with your recollection, that three
but of four of Herr Von Papen’s reports would come to you to be seen by
you?

VON NEURATH: That I cannot tell you at this late day.

SIR DAVID MAXWELL-FYFE: You are quite right, Herr Von Neurath. You
wouldn’t know how many went to you, but you say you saw a considerable
number of Herr Von Papen’s reports. I think there were 19; I am sure you
can take it that they are marked—19 are marked, “Passed the Foreign
Office”.

VON NEURATH: I do believe you, yes; but the question is how many were
submitted to me, for I did not receive every individual report from
every ambassador or minister abroad. Otherwise, I would have been
drowned in paper.

SIR DAVID MAXWELL-FYFE: I quite agree; but what I asked you was, did you
receive these from Herr Von Papen, who was supposed to be in a rather
special position dealing with a very difficult problem? Did you receive
a considerable number of reports from Herr Von Papen to Hitler as passed
to you?

VON NEURATH: I can tell you only that I received some reports but
certainly not all. I cannot tell you more than that today.

SIR DAVID MAXWELL-FYFE: My Lord, perhaps this would be a convenient time
to break off.

THE PRESIDENT: We will adjourn at this time.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

SIR DAVID MAXWELL-FYFE: I just want to get two or three facts clear
about 1935 before I put some questions to you.

On the 10th of March Germany announced the establishment of an air force
and on the 16th of March I think you, among others, signed the law
introducing compulsory military service. You explained all that to us; I
don’t want to go over it again, but I just want to ask you about the
Secret Reich Defense Law of the 21st of May 1935. Would you look at
General Thomas’ comment on it.

My Lord, it is at Page 52 of Document Book 12. It is about Page 71 of
the German document book.

THE PRESIDENT: Number 12a or b?

SIR DAVID MAXWELL-FYFE: Number 12, My Lord. That is the original one;
Page 52, My Lord.

    “The Central Directorate of the supreme Reich authorities,
    ordered in case of war, has influenced the development and the
    activity of the war economy organization to such an extent that
    it is necessary to discuss this matter in detail. The
    foundations had already been laid, for the central organization
    of the supreme Reich authorities in the event of a war prior to
    1933 in many discussions and decrees, but it was radically
    altered when the National Socialists came into power, and
    especially by the death of Reich President Von Hindenburg. The
    latest orders were decreed in the Reich Defense Law of 21 May
    1935, supposed to be published only in case of war but already
    declared valid for carrying out war preparations. As this law
    fixed the duties of the Armed Forces and the other Reich
    authorities in case of war, it was also the fundamental ruling
    for the development and activity of the war economy
    organization.” (Document 2353-PS)

And you will remember that on the same day the Defendant Schacht had
been made Plenipotentiary for War Economy.

Did you appreciate at the time, Defendant, that that law was the
fundamental ruling for the development and activity of the war economy
organization?

VON NEURATH: Yes, but only in case of a war, that is, in case of
mobilization.

SIR DAVID MAXWELL-FYFE: You see that the point that I am putting to you
is that it had already been declared valid for carrying out war
preparations. Didn’t you understand that it was a big step forward for
war preparations?

VON NEURATH: Not at all. It was not a big step forward at all. It was
only the establishing of the necessary measures in case of a war. In
every country you have to guarantee the co-operation of the various
offices in the event of an attack.

SIR DAVID MAXWELL-FYFE: That is your view. Now, at this time, up to May
1935, is it correct that the German Foreign Office was still staffed by
diplomats or Foreign Office officials of the older school and had not
yet been invaded by the products of the Bureau Ribbentrop?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Did you receive any warnings from your own staff
as to the happenings in Austria, or the rearmament, the declaration of
the air force, and the conscription?

VON NEURATH: I was advised about happenings in Austria, as can be seen
from the report which you submitted to me. The re-establishment of the
Armed Forces was a decision which was made in the Cabinet, and of course
I knew about that.

SIR DAVID MAXWELL-FYFE: Yes, but—I am sorry, probably I did not put the
proper emphasis on the word. When I said warning I meant a real warning
from your officials that these happenings were making Germany regarded
abroad as being bloodthirsty and warmongering. Did you get any warnings
from your officials?

VON NEURATH: Certainly not, for that was not the case, and if any
assertions like that were being made abroad, they certainly were not
true.

SIR DAVID MAXWELL-FYFE: Now, would you look at Document 3308-PS, the
affidavit of the interpreter Paul Schmidt.

My Lord, it is Page 68 of Document Book 12a, and it is Page 65 or 66 of
the German version, Paragraph 4.

[_Turning to the defendant._] Now, just let me read you Paragraphs 4 and
5, as to what Herr Paul Schmidt says:

    “4. The attempted Putsch in Austria and the murder of Dollfuss
    on 25 July 1934 seriously disturbed the career personnel of the
    Foreign Office because these events discredited Germany in the
    eyes of the world. It was common knowledge that the Putsch had
    been engineered by the Party, and the fact that the attempted
    Putsch followed so closely on the heels of the blood purge
    within Germany could not help but suggest the similarity of Nazi
    methods, both in foreign and in domestic policy. This concern
    over the repercussions of the attempted Putsch was soon
    heightened by a recognition of the fact that these episodes were
    of influence in leading to the Franco-Soviet Consultative Pact
    of 5 December 1934, a defensive arrangement which was not heeded
    as a warning by the Nazis.”

Defendant, let’s take that. In these three points, is it correct, as
Herr Schmidt says, that the attempted Putsch and the murder of Dollfuss
seriously disturbed the career personnel in the Foreign Office?

VON NEURATH: Not only the career personnel of my office were disquieted
over this but I, of course, was also disquieted.

SIR DAVID MAXWELL-FYFE: And taking the last sentence:

    “This concern”—that is the disturbance by the Putsch—“over the
    repercussions of the attempted Putsch was soon heightened by a
    recognition of the fact that these episodes”—blood purge and
    the Putsch—“were of influence in leading to the Franco-Soviet
    Consultative Pact of December 5, 1934, a defensive arrangement
    which was not heeded as a warning...”

Is that correct, that among your staff the concern was heightened by
recognizing that the blood purge and the Putsch had alarmed France and
the Soviet Union as to the position of Germany and led to the
consultative pact?

VON NEURATH: No, that is a personal opinion of the interpreter Schmidt.

SIR DAVID MAXWELL-FYFE: No, with respect to you, Defendant, it is not.
What interpreter Schmidt is saying is that that was the opinion of your
experienced staff in the Foreign Office and that is what I am putting to
you. Is he not right in saying that your experienced staff were
concerned that these events had had their effect on the consultative
pact?

VON NEURATH: Not in the least.

SIR DAVID MAXWELL-FYFE: Well, at any rate...

VON NEURATH: I can only repeat, the two things had no connection with
each other.

SIR DAVID MAXWELL-FYFE: Is he correct in his last statement that that
arrangement was not heeded as a warning by the Nazis?

VON NEURATH: That I cannot say; I do not know.

SIR DAVID MAXWELL-FYFE: Well, now, just look at the next paragraph.

    “The announcement in March of the establishment of a German Air
    Force and of the introduction of conscription was followed on 2
    May 1935 by the conclusion of a mutual assistance pact between
    France and the Soviet Union. The career personnel of the Foreign
    Office regarded this as a further very serious warning as to the
    potential consequences of German foreign policy, but the Nazi
    leaders only stiffened their attitude toward the Western Powers,
    declaring that they were not going to be intimidated. At this
    time the career officials at least expressed their reservations
    to the Foreign Minister, Neurath. I do not know whether or not
    Neurath in turn related these expressions of concern to Hitler.”

Now, just let us take that. Did—do you agree that the career personnel
of the Foreign Office regarded the Franco-Soviet pact as a further very
severe, very serious warning as to the potential consequences of German
foreign policy?

VON NEURATH: I do not know in the name of which personnel Herr Schmidt
is making these statements. But I, at any event, heard nothing to the
effect that my career personnel had expressed these opinions.

SIR DAVID MAXWELL-FYFE: Well, here is Herr Schmidt saying, “The career
officials, at least, expressed their reservations to the Foreign
Minister, Neurath.” That is you.

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Are you saying that Herr Schmidt, who after all
was a career official although he was an interpreter for a great deal of
the time—are you saying that Herr Schmidt is not stating what is
accurate when he says that your permanent officials expressed their
concern to you?

VON NEURATH: But quite decidedly. How could Herr Schmidt, who was only
an insignificant civil servant at that time, know what my career
personnel told me and in addition, how could Schmidt judge this? And I
should also like to add that Schmidt said here, before this Court, that
this affidavit, or whatever it may be, was submitted to him after a
serious illness and that he personally knew absolutely nothing more
about the contents. That now...

SIR DAVID MAXWELL-FYFE: You may rest assured, the Tribunal will correct
me if I am wrong, that I put these paragraphs to Herr Schmidt and he
agreed with them when he was giving evidence before this Tribunal.

But now just look at one other statement at the end of Paragraph 6.
Well, we’ll just—we will read Paragraph 6, because I want to ask you
about the end:

    “The re-entry of the German military forces into the Rhineland
    was preceded by Nazi diplomatic preparation in February. A
    German communiqué of 21 February 1936 reaffirmed that the
    Franco-Soviet Pact of mutual assistance was incompatible with
    the Locarno Treaties and the League Covenant. On the same day
    Hitler argued in an interview that no real grounds existed for
    conflict between Germany and France. Considered against the
    background statements in _Mein Kampf_, offensive to France, the
    circumstances were such as to suggest that the stage was being
    set for justifying some future act. I do not know how far in
    advance the march into the Rhineland was decided upon. I
    personally knew about it and discussed it approximately 2 or 3
    weeks before it occurred. Considerable fear had been expressed,
    particularly in military circles, concerning the risk of this
    undertaking. Similar fears were felt by many in the Foreign
    Office. It was common knowledge in the Foreign Office, however,
    that Neurath was the only person in Government circles consulted
    by Hitler who felt confident that the Rhineland could be
    remilitarized without armed opposition from Britain and France.
    Neurath’s position throughout this period was one which would
    induce Hitler to have more faith in Neurath than in the general
    run of ‘old school’ diplomats, whom he (Hitler) tended to hold
    in disrespect.”

Well, now, if this minor official, of whom you just talked, knew about
and discussed the march into the Rhineland some 2 or 3 weeks before it
occurred, how much before it occurred had you discussed it?

VON NEURATH: Herr Schmidt must have been clairvoyant, for 2 or 3 weeks
in advance even I did not know anything about it. I heard of it about 1
week before Hitler’s decision, and if I—if it says here that I—that it
was generally known in the Foreign Ministry that I was the only one in
the Government circles consulted by Hitler who was confident that the
Rhineland could be remilitarized without armed opposition from Britain
and France, it certainly turned out that I was right.

SIR DAVID MAXWELL-FYFE: You were right—but is it true that you were the
only person in Government circles who thought that it could be occupied
without interference by Britain and France? Is that true?

VON NEURATH: I am not in a position to say whether I was the only one,
but at any rate, I was convinced of this on the basis of my knowledge of
international conditions.

SIR DAVID MAXWELL-FYFE: And so that at any rate, whatever the
limitations of Paul Schmidt, he knew what your position was quite
accurately. Was he not right about it in the last sentence, that your
position throughout the period was one which would make Hitler look to
you rather than to the rest, the other figures of pro-Nazi diplomacy and
foreign affairs, because you were the person who was encouraging him? Is
that not the position?

VON NEURATH: I did not encourage him in any way, but I described the
situation to him as I saw it, and it was later proved that I had been
right.

SIR DAVID MAXWELL-FYFE: Well now, I just want you to deal with one other
point, which is really 1936, but we will deal with it as I have been
dealing with Austria.

You have said once or twice that you objected very strongly to the
description of the Austrian treaty, the treaty between the Reich and
Austria of the 11th of July as being a subterfuge or a façade. That is
right; is it not? You objected very strongly to that view?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Do you know that Hitler had given instructions
to the Gauleiter of the Austrian NSDAP to carry on the struggle at the
same time as the treaty was signed?

VON NEURATH: No, I do not know anything about that.

SIR DAVID MAXWELL-FYFE: Just let me remind you. I do not want to put
anything that seems unfair.

My Lord, it is Document Book 12, Page 97.

[_Turning to the defendant._] This is the report of Dr. Rainer, whom the
Tribunal has had the advantage of seeing, and if you will look at the
end of one paragraph he says:

    “The agreement of 11 July 1936 was strongly influenced by the
    activities of these two persons.”—That is Defendant
    Seyss-Inquart and Colonel Glaise-Horstenau—“Papen mentioned
    Glaise-Horstenau to the Führer as being a trusted person.”

Now the next paragraph:

    “At that time the Führer wished to see the leaders of the
    Party...”

THE PRESIDENT: Sir David.

SIR DAVID MAXWELL-FYFE: I am sorry, My Lord.

THE PRESIDENT: Do you say 97 of Document Book 12?

SIR DAVID MAXWELL-FYFE: I did, My Lord, yes. Yes, My Lord; it is the
third paragraph and begins, “At that time...”

THE PRESIDENT: Oh yes, I see it.

SIR DAVID MAXWELL-FYFE: If Your Lordship please:

    “At that time the Führer wished to see the leaders of the Party
    in Austria, in order to tell them his opinion on what Austrian
    National Socialists should do.” (Document Number 812-PS)

THE PRESIDENT: I am afraid it was another “at that time” that we were
looking at. Could you give us some other indication?

SIR DAVID MAXWELL-FYFE: My Lord, it is in the middle.

THE PRESIDENT: It is on 98 in ours.

SIR DAVID MAXWELL-FYFE: I am so sorry, My Lord. The paging must be
different. I beg Your Lordship’s pardon.

    [_Continuing._] “At that time the Führer wished to see the
    leaders of the Party in Austria in order to tell them his
    opinion on what Austria National Socialists should do. Meanwhile
    Hinterleitner was arrested, and Dr. Rainer became his
    successor...”

Mind you, this is the man who is making this statement.

    “...successor and leader of the Austrian Party. On 16 July 1936
    Dr. Rainer and Globocznik visited the Führer at the
    Obersalzberg, where they received a clear explanation of the
    situation and the wishes of the Führer. On 17 July 1936 all
    illegal Gauleiter met in Anif near Salzburg, where they received
    a complete report from Rainer on the statement of the Führer and
    his political instructions for carrying out the fight. At the
    same conference the Gauleiter received organizational
    instructions from Globocznik and Hiedler.”

Did you not know—did Hitler not tell his Foreign Minister, who had just
supervised the conclusion of this treaty, that he intended to give the
illegal Gauleiter instructions as to how to carry on the fight? Didn’t
he tell you that?

VON NEURATH: No, he did not tell me that, but I do remember—I believe
it was the same Dr. Rainer who appeared here as a witness—who stated
that Hitler summoned him and other Gauleiter and told them that in the
future they were to observe strictly the agreements of 1936. By the way,
the matter that you just quoted is not mentioned at all in the document
which was submitted to me.

SIR DAVID MAXWELL-FYFE: No, that’s not mentioned. What is mentioned is
the political instructions for carrying out the fight and the
organizational instructions from Globocznik. At any rate, you knew
nothing about that?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: Well, it is rather difficult for you to judge
whether the treaty is made sincerely if you do not know the instructions
that are given to the illegal Party in Austria by Hitler, is it not?

VON NEURATH: Yes, naturally.

SIR DAVID MAXWELL-FYFE: Well now, just let’s deal with one or two other
points. I would just like you to look at what Mr. Messersmith says at
the end of 1935. You remember this statement—I will give you the
reference in a moment—that:

    “...Europe will not get away from the myth that Neurath, Papen,
    and Mackensen are not dangerous people and that they are
    ‘diplomats of the old school.’ They are in fact servile
    instruments of the regime and just because the outside world
    looks upon them as harmless, they are able to work more
    effectively. They are able to sow discord just because they
    propagate the myth that they are not in sympathy with the
    regime.”

Now, can you tell us up to the date on which Mr. Messersmith wrote
that—on October 10, 1935—of a single instruction of Hitler’s that you
had not carried out?

VON NEURATH: I did not quite understand. A single instruction...

SIR DAVID MAXWELL-FYFE: My Lord, I am sorry; I mislaid the reference. It
is Document Book 12, Page 107. That is the reference to it.

[_Turning to the defendant._] You see, Mr. Messersmith is there saying
that you and the Defendant Von Papen and Von Mackensen are servile
instruments of the regime. Now, I am just asking you whether you could
tell us up to the date that Mr. Messersmith wrote, on 10 October 1935,
any instruction of Hitler’s that you had refused to carry out.

VON NEURATH: Not only one, but quite a few. I have testified as to the
number of times I contradicted Hitler, and I have expressed myself about
what Mr. Messersmith is assuming here again—about the importance of Mr.
Messersmith’s affidavit.

SIR DAVID MAXWELL-FYFE: Defendant, I put it this way: Up to October 10,
1935, what did you tell the Tribunal was the most serious thing that
Hitler had ordered you to do and you had refused to carry out? What was
the most serious—the one that mattered most?

VON NEURATH: Well on the spur of the moment, that is a question that I
cannot answer. How should I know what the most serious question was
which I opposed? I opposed all sorts of things.

SIR DAVID MAXWELL-FYFE: If you can’t remember what you think is the most
serious, I shan’t trouble you with it any more, but I want...

VON NEURATH: Well, you are quite welcome to submit it to me, but don’t
produce an allegation out of a clear sky without giving me the chance to
refute it.

SIR DAVID MAXWELL-FYFE: I was asking you to tell us, but I will pass on
to what another American diplomat put. I would like to ask you about Mr.
Bullitt’s report, with which I gather you agree. My Lord, that is L-150,
and it is at Page 72 of the Document Book 12.

My Lord, I hope that there is no difference of the paging—72 of mine.

THE PRESIDENT: Yes; it is 74.

SIR DAVID MAXWELL-FYFE: Yes, it is 74. I am sorry, My Lord.

[_Turning to the defendant._] Now, it is the second paragraph there.
After saying that he had a talk with you, he says:

    “Von Neurath said that it was the policy of the German
    Government to do nothing active in foreign affairs until ‘the
    Rhineland had been digested.’ He explained that he meant that
    until the German fortifications had been constructed on the
    French and Belgian frontiers, the German Government would do
    everything possible to prevent rather than encourage an outbreak
    by the Nazis in Austria and would pursue a quiet line with
    regard to Czechoslovakia. ‘As soon as our fortifications are
    constructed and the countries of Central Europe realize that
    France cannot enter German territory at will, all those
    countries will begin to feel very differently about their
    foreign policies and a new constellation will develop...’”

You agree you said that?

VON NEURATH: Yes, yes, certainly. Yesterday or the day before I
testified in detail about what that was supposed to mean. Moreover, it
does not make any difference.

SIR DAVID MAXWELL-FYFE: I would like to see if you agree with the
meaning I suggest. That is that as soon as you had got your
fortifications in sufficiently good order on your western frontier, you
would proceed to try and secure an Anschluss with Austria and to get
back the Sudetenland from Czechoslovakia. Isn’t that what it means?

VON NEURATH: No, no, not at all. That is quite clear in the document.
What I meant by this and what I expressed was that these countries,
particularly Czechoslovakia and France, would change their policy toward
Germany, because they could no longer march through Germany so easily.

SIR DAVID MAXWELL-FYFE: You appreciate, Defendant, what I am putting to
you? I think I made it quite clear—that at the time that you were
facing the Western Powers with the remilitarization of Germany and the
Rhineland—that is in 1935 and 1936—you were then giving assurances to
Austria, which Hitler did in May 1935, and you made this treaty in 1936.
As soon as you had digested your first steps, you then turned against
Austria and Czechoslovakia in 1938. I am suggesting, you see, that you
were talking the exact truth and prophesying with a Cassandra-like
accuracy. That is what I am suggesting—that you knew very well that
these intentions were there.

VON NEURATH: What?

SIR DAVID MAXWELL-FYFE: You say you didn’t?

VON NEURATH: Not at all, not at all, not at all! That is an assumption
on your part, for which there is absolutely no proof.

SIR DAVID MAXWELL-FYFE: We will not argue it further because we will
come on to just one other point before we proceed to 1937.

You have told the Tribunal, not once but many times, that you did not
support the Nazi attitude toward the Christian churches, of oppressing
the churches. That is I have understood you correctly, have I not?

VON NEURATH: Yes, indeed.

SIR DAVID MAXWELL-FYFE: Now, and you say that you resisted and actively
intervened against the repression of the Church. Would you just look at
Document 3758-PS.

My Lord, that will become Exhibit GB-516. My Lord, Your Lordship will
find it in Document Book 12a, Page 81.

[_Turning to the defendant._] This is an entry which must have been
fairly early in 1936 in the diary of the Reich Minister of Justice:

    “The Reich Foreign Minister transmits, with a personal note for
    confidential information, a letter from Cardinal State Secretary
    Pacelli”—that is the present Pope—“to the German Ambassador in
    the Vatican, in which he urges an act of pardon for Vicar
    General Seelmeyer. He, the Reich Foreign Minister, remarks to
    this that after the heavy attacks on German justice by the Holy
    See in the note of 29 January, there is no reason in his opinion
    to show any deference to the Vatican. He recommends it, however,
    since for foreign policy reasons it is to our interest not to
    let our good personal relations with Pacelli cool off.”

Now, Defendant, will you tell me anything that showed the slightest
personal interest in the fate of Father Seelmeyer, or were you only
concerned with showing a firm front to the Vatican and not losing your
good relations with Cardinal Pacelli?

DR. VON LÜDINGHAUSEN: Mr. President, the document has just been
submitted to me; I have had no opportunity whatsoever to look this
document over and inform myself about it. Likewise, I do not know of
there having been any talk about a diary of the Reich Minister of
Justice up to now in this Trial. Therefore, I am not in a position to
judge how the Reich Minister of Justice could have made this entry in
his diary at all.

Since these notes have apparently been taken out of their context, it is
not possible for me to form any kind of a picture of the significance of
the entry as a whole, and naturally it is even less possible for the
defendant to do so.

Therefore, I must protest against the admissibility of this question and
against the submission of this document.

SIR DAVID MAXWELL-FYFE: This is a perfectly good captured document. It
is a copy of the original diary of the Reich Minister of Justice, and it
is therefore admissible against the defendant.

THE PRESIDENT: Dr. Von Lüdinghausen, you can see the original document.

SIR DAVID MAXWELL-FYFE: My Lord, actually, I am just told by my American
colleagues that this diary has been used before, that extracts were put
in in the case against the Defendant Von Schirach.

VON NEURATH: Mr. President, I have no objection...

THE PRESIDENT: One moment.

DR. VON LÜDINGHAUSEN: I could not understand a word, Mr. President. I am
sorry, I could not understand. I can hear now.

THE PRESIDENT: When you make an objection, you should see that the
instrument is in order.

What I said was that you can see the original document. And I am told
now that the original document has been used before, and that therefore
there is nothing to prevent its being used in cross-examination. It is a
captured document, and you can see the original.

DR. VON LÜDINGHAUSEN: I did not know that, Mr. President.

SIR DAVID MAXWELL-FYFE: What I am putting to you, Defendant, is that
your statement to the Minister of Justice shows no concern for the
individual priest about whom the complaint had been made; it is merely
concerned with your relations with the Vatican and with Cardinal
Pacelli, as he then was. Is that typical of your interferences? Is this
typical of your interferences for the sake of ill-treated priests?

VON NEURATH: I naturally cannot remember this case any more, but the way
it stands there in the entry I was perfectly justified. According to the
entry, I said that we had no reason to show any special consideration
after the then Cardinal State Secretary, or Pope had attacked German
justice, but that, as Foreign Minister I considered it important not to
disturb our relations with Pacelli. I cannot see what conclusions you
want to draw from this.

SIR DAVID MAXWELL-FYFE: Well, I don’t want to trespass on the ground of
my Soviet colleagues, but you know that the Czech report accuses you,
with complete impartiality as far as sect is concerned, of your
Government ill-treating the Catholics, Protestants, Czech National
Church, and even the Greek Church in Czechoslovakia. You know that all
these churches suffered during your protectorate—do you agree that all
these churches suffered under your protectorate?

VON NEURATH: No, not at all.

SIR DAVID MAXWELL-FYFE: All right, I won’t go into the details, but I am
suggesting to you that your care about the various religious confessions
did not go very deep.

VON NEURATH: That is again an assertion on your part which you cannot
prove.

SIR DAVID MAXWELL-FYFE: Well, I would just like to put one thing. You
remember telling the Tribunal this morning of the excellent terms that
you were on with the archbishop of Prague?

VON NEURATH: I said that I had good relations with the archbishop.

SIR DAVID MAXWELL-FYFE: I would just like you to look at this copy.

My Lord, this is a copy, but General Ecer assures me that he can get the
original from the Czech Government files. I received it only a half hour
ago. General Ecer, who is here from Czechoslovakia, says that he can
vouch for the original.

I’d like the defendant to look at it. Is that a letter which you
received from the archbishop?

My Lord, it is Document D-920, and it will be Exhibit GB-517:

    “Your Excellency, very esteemed Herr Protector of the Reich:

    “Your last letter has filled me with such sorrow because I could
    not but gather from it that not even Your Excellency is prepared
    to believe me—that I lost consciousness and had to call
    university Professor Dr. Jirasek, who remained beside my sickbed
    for an hour—he is coming again today, together with the
    specialist on internal diseases....”

And then he gives his name.

    “Your Excellency may be sure that I shall always do what I can
    to please you. But please, have mercy on me, too, and do not
    demand that I should act against the laws of the Church.

    “Yours, _et cetera_, Karl Cardinal Kaspar, M. P. prince
    archbishop.”

Do you remember that?

VON NEURATH: I cannot say what this refers to. I have no idea; there is
nothing in it, and I cannot tell you what it referred to.

SIR DAVID MAXWELL-FYFE: You can’t remember this occasion when the prince
archbishop wrote to you and told you the effect, the illness that he had
suffered from and beseeched you not to ask him to do something against
the laws of the Church? It doesn’t remain in your mind at all, does it?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: All right, we’ll leave that. Well now, I want
you to just tell me this, before we pass on to the later occurrences in
1937. You remember you dealt yesterday with your speech—I think it was
to the German Academy of Law. You remember the speech, in August of
1937? I can give you a reference. Would you like to look at it?

VON NEURATH: I only need the reference to where I spoke.

SIR DAVID MAXWELL-FYFE: You remember it, I only wanted to save time.
Don’t you remember? I will put it to you if you like. It is the speech
of the 29th of August 1937, and I will give you the reference in one
moment. What I wanted to ask you was this—you said:

    “The unity of the racial and national will created through
    Nazism with unprecedented élan has made possible a foreign
    policy by means of which the chains of the Versailles Treaty
    were broken.”

What did you mean by “the unity of the racial will” produced by Nazism?

VON NEURATH: By that I probably meant that all Germans were unified more
than ever before. At this date I can no longer tell you what I meant by
this, either. But nevertheless I was merely establishing a fact.

SIR DAVID MAXWELL-FYFE: I see. Now tell me. That was in August 1937. You
told the Tribunal the effect that the words of Hitler, on the 5th of
November 1937, had upon you, and your counsel has put in the statement
by Baroness von Ritter. After these words...

VON NEURATH: In November?

SIR DAVID MAXWELL-FYFE: Yes, November of 1937.

VON NEURATH: Yes, indeed.

SIR DAVID MAXWELL-FYFE: Now, after these words had had that effect, with
whom did you discuss them among the people who had been present at the
Hossbach interview?

VON NEURATH: This speech was not made at Berchtesgaden at all. That is a
mistake; it was at Berlin, this address.

SIR DAVID MAXWELL-FYFE: I didn’t say Berchtesgaden; I said at the
Hossbach conference. We call it the Hossbach conference because he took
the minutes.

VON NEURATH: I have already told you yesterday with whom I spoke,
General Von Fritsch, and with Beck, who was then Chief of the General
Staff; and I also testified that we agreed at that time jointly to
oppose Hitler and the tendency which he had revealed in this speech.

SIR DAVID MAXWELL-FYFE: Did you speak about it to Hitler?

VON NEURATH: Yes. I testified yesterday in detail that I did not have a
chance to speak with Hitler until 14 or 15 January, because he had left
Berlin and I could not see him. That was the very reason why I asked for
my resignation at that time.

SIR DAVID MAXWELL-FYFE: Did you speak about it to Göring or Raeder?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: Now I want you to just tell me one word or two
about this Secret Cabinet Council to which you were appointed after you
left the Foreign Office.

Would you look at the first sentences of the report of that meeting on
the 5th of November?

My Lord, it is Page 81 in the English Document Book 12, and Page 93 of
the German document book.

It is only the first two sentences, Defendant:

    “The Führer stated initially that the subject matter of today’s
    conference was of such importance that its detailed discussion
    would certainly, in other states, take place before the Cabinet
    in full session. However, he, the Führer, had decided not to
    discuss this matter in the larger circle of the Reich Cabinet
    because of its importance.”

Then, if you will look at the people who were there: There is the
Führer; the Minister for War; the three Commanders-in-Chief; and the
Minister of Foreign Affairs.

Now, Defendant, supposing that in February or March 1938, Hitler had
wanted to discuss Austria before the same Council, the same limited
number of people. Just let us see who would have taken the places of the
people who were there. Instead of Von Blomberg and Von Fritsch, you
would have had the Defendant Keitel as Chief of the OKW, and Von
Brauchitsch as Commander-in-Chief, would you not?

VON NEURATH: Yes, I believe so.

SIR DAVID MAXWELL-FYFE: As a matter of fact, Raeder and Göring
maintained their positions; the Defendant Von Ribbentrop had taken
yours; and you were president of the Secret Cabinet Council. Lammers was
secretary of the Cabinet, and Goebbels had become more important as
Minister of Propaganda.

Well now, I would just like you to look and see who the people were that
formed the Secret Cabinet Council.

Your Lordship will find that on Page 8 of Document Book 12; and it is
Page 7 of the German document book.

[_Turning to the defendant._] Now, do you see who they are? There are
the Defendant Von Ribbentrop, the Defendant Göring, the Führer’s Deputy,
Hess, Dr. Goebbels, and the Chief of the Reich Chancellery, Lammers, Von
Brauchitsch, Raeder, and Keitel. You are saying, if I understand you,
that this Secret Cabinet Council had no real existence at all. Is that
your case?

VON NEURATH: Yes.

SIR DAVID MAXWELL-FYFE: Why were you receiving special funds for getting
diplomatic information as president of the Secret Cabinet Council?

VON NEURATH: I did not receive any. I should like to know...

SIR DAVID MAXWELL-FYFE: Oh, didn’t you?

VON NEURATH: No.

SIR DAVID MAXWELL-FYFE: Well, let us just have a look at this. Would you
look at Document 3945-PS?

My Lord, it is 129 in Document Book 12a. It will be Exhibit GB-518.

If you will look at the letter of the 28th of August 1939 from Lammers
to you:

    “In conformity with your request, I have had the sum of 10,000
    Reichsmark, which had been placed at your disposal for special
    expenses in connection with the obtaining of diplomatic
    information, handed to Amtsrat Köppen.

    “I enclose the draft of a certificate showing how the money was
    used, with the request to send me the certificate after
    execution, at the latest by the end of the financial year.”

And if you will turn over to the next page, 131, you will see that at
the end of March, which was toward the end of the financial year, you
signed a certificate saying:

    “I have received 10,000 Reichsmark from the Reich Chancellery
    for special outlays entailed in obtaining diplomatic
    information.”

Now, will you tell us why you were getting special expenses for
obtaining diplomatic information?

VON NEURATH: Yes, I can tell you that. That is an expression used at the
request of Lammers who had the treasury of the Reich Chancellery under
him, so that I could meet the expenses of my office; that is, for one
typist and for one secretary. And in order to justify this to—I do not
know which authority, what this authority is called, to the Finance
Ministry—I had no special budget—Herr Lammers asked me to use this
expression. That can be seen from a certificate which is also in there.

SIR DAVID MAXWELL-FYFE: That is all right. I am going to refer to the
other letters. But why was it necessary that the expenses of your one
secretary and one typist should not be audited? As it shows on pages...

My Lord, the pages are 134 and 135.

VON NEURATH: I just said that...

SIR DAVID MAXWELL-FYFE: On Page 134 you will see there is a letter from
you to Lammers: “In my bureau there is a need to incur special expenses,
to audit which it does not appear to me advisable.”

Why wasn’t it advisable to audit the expenses of your typist and
secretary?

VON NEURATH: I can no longer tell you that just now. But at any rate, I
did not use any more money for diplomatic information; but these are
merely office expenses which I figured in there. And so at the end of
this letter which you have submitted to me there is...

SIR DAVID MAXWELL-FYFE: Well now...

VON NEURATH: Please, let me finish my statement.

SIR DAVID MAXWELL-FYFE: Certainly.

VON NEURATH: There is a report here to me, from my—from this secretary,
in which he says—no, this is not the letter I thought it was.

SIR DAVID MAXWELL-FYFE: Well, now, if you are finished, I anticipated
you might say it was office expenses. Would you look at Document
3958-PS?

My Lord, that will be Exhibit GB-519.

[_Turning to the defendant._] I submit, that shows you your office
expenses were carried on the ordinary budget, the letter of 8 April 1942
to you.

THE PRESIDENT: Is that in the book?

SIR DAVID MAXWELL-FYFE: My Lord, yes; I am so sorry. It is 140. I beg
Your Lordship’s pardon.

[_Turning to the defendant._] That is a letter to you which says:

    “The Reich Minister for Finance has agreed that the budgetary
    needs announced by you for the financial year 1942 be shown in
    Special Plan 1. I therefore have no objections to having the
    necessary expenditure granted—even before the establishment of
    Special Plan I—within the limits of these amounts, namely:

    “For personal administrative expenditures, up to 28,500
    Reichsmark; for official administrative expenditures, up to
    25,500 Reichsmark; total 54,000 Reichsmark.”

That was providing for your office and personal expenditures during the
same period for which you were getting these additional sums. So I am
suggesting to you that if these sums of 10,000 marks which you got every
now and then were not for office expenditures, I would like you to tell
the Tribunal what they really were for.

VON NEURATH: Yes, I would be very pleased if I were also told about
this, for I no longer know.

SIR DAVID MAXWELL-FYFE: Well, they are your letters, and you got the
money. Can’t you tell the Tribunal what you got it for?

VON NEURATH: No, I cannot right now. Perhaps I can tell you afterward.

SIR DAVID MAXWELL-FYFE: Possibly it was for obtaining diplomatic
information, it says—

My Lord, Dr. Von Lüdinghausen makes the point that the letter I put was
in 1939. Of course, there were other letters. I have not troubled the
Tribunal with each one, but there is another letter in which there is a
reference to a payment on the 9th of May 1941, and, of course, another
reference to a payment on the 30th of June 1943. My Lord, these are
Pages 133 and 134. I am sorry; I did not give the details. Perhaps I
ought to have indicated that.

THE PRESIDENT: The letter on Page 137, which may have some bearing, is a
letter from the man signed “K”—from the man who made the previous
applications?

SIR DAVID MAXWELL-FYFE: Yes.

Perhaps would you like to look at that, Defendant? It is Document
3945-PS, a letter of the 14th of July 1943, signed “K”:

    “When I went into the matter of the special funds, the competent
    people in the Reich Chancellery showed an entirely understanding
    attitude in this matter and asked for a written application from
    Your Excellency. When I replied that I did not wish to produce
    such an application before success was guaranteed, they asked
    for a little more time for a further exchange of views. After a
    few days I was told that I could produce the application without
    hesitation, upon which I handed over the letter which I had
    previously withheld. The amount requested has been handed to me
    today and I have duly entered this sum in my special cashbook as
    a credit.”

VON NEURATH: Yes, but in spite of this...

SIR DAVID MAXWELL-FYFE: Well, now does that help you? Can you tell the
Tribunal what were the outlays, the special outlays for the obtaining of
diplomatic information for which you received this money?

VON NEURATH: I am very sorry; I absolutely cannot—I can no longer
recall this matter at all. And the remarkable part is that this letter
is dated the 14th of July 1943, when I no longer had any functions
whatsoever, when I had left altogether. At this moment, I do not know.

SIR DAVID MAXWELL-FYFE: That is very strange, you know. In a further
letter, in Document 3958-PS, on 8 January 1943, and in succeeding
letters on the 4th of March and the 20th of April, the end of your
occupation of the premises of 23 Rheinbabenallee is explained there and
when your expenses ceased when you went to live in the country. I was
just going to ask you about that—a little about that house. If you will
just look at the affidavit of Mr. Geist, the American consul...

My Lord, that is Document 1759-PS, Exhibit USA-420.

[_Turning to the defendant._] I referred to this this morning, and the
passage that I want you to tell us about is in the middle of a
paragraph.

My Lord, it is at the foot of Page 11 of the affidavit in the English
version.

THE PRESIDENT: Do you have the separate document?

SIR DAVID MAXWELL-FYFE: Yes, My Lord, it is at the foot of Page 11. The
paragraph begins:

    “Another instance of the same nature occurred with regard to my
    landlord...”

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: My Lord, if Your Lordship goes on another 10
lines, after explaining about his landlord having to give up his house
to the SS, he says:

    “I know that on many occasions where it was thought necessary to
    increase the pressure, the prospective purchaser or his agent
    would appear accompanied by a uniformed SA or SS man. I know
    because I lived in the immediate neighborhood and knew the
    individuals concerned, that Baron von Neurath, one time Foreign
    Minister of Germany, got his house from a Jew in this manner.
    Indeed, he was my next-door neighbor in Dahlem. Von Neurath’s
    house was worth approximately 250,000 dollars.”

[_Turning to the defendant._] Was that 23 Rheinbabenallee?

VON NEURATH: Yes, yes...

SIR DAVID MAXWELL-FYFE: Who acquired it for you, so that the president
of the nonexistent Secret Cabinet Council could have it as an official
residence? Who acquired it?

VON NEURATH: I did not understand that. Who did what?

SIR DAVID MAXWELL-FYFE: Who acquired 23 Rheinbabenallee? Who got it?

VON NEURATH: I can tell you about that. In the year 1937, when Hitler
was erecting the large buildings for his Reich Chancellery, he told me
one day that I would have to move from my apartment, which was situated
behind the Foreign Office, because he wanted the garden for his Reich
Chancellery, and the house would be torn down.

He said that he had given instructions to the Reich Building
Administration to find other living quarters for me. The Reich Building
Administration offered me various expropriated Jewish residences. But I
refused them. But now I had to look for a house myself, and my personal
physician, to whom I happened to mention this matter, told me that he
knew of a place in Dahlem, that was Number 23 Rheinbabenallee, where he
was house physician to the owner. This owner was Lieutenant Colonel
Glotz, who was the brother of a close friend of mine. I informed the
Reich Building Administration about this and told them that they should
get in touch with this gentleman. In the course of the negotiations,
which were conducted by the Reich Building Administration, a contract of
sale was drawn up for the price quoted by Mr. Geist, and the price was
in marks, not in dollars. This sum, at the request of Lieutenant Colonel
Glotz, was paid to him in cash, and on his wish I persuaded the Finance
Minister to have this money transferred to Switzerland.

I might remark that I was still Foreign Minister at the time. Afterward,
I remained in this house for the simple reason that I did not find
another one, and Herr Von Ribbentrop, my successor, moved into the old
Presidential Palace.

Then in the year 1943 this house was destroyed. At the moment,
therefore, I still cannot explain what these moneys were for and whether
they were official payments made by the Reich Treasury. With the best
intentions, I cannot tell you. But the statements made by Mr. Geist here
are completely wrong as I have just stated. I did not buy or have this
house transferred from a Jew, but from the Christian Lieutenant Colonel
Glotz.

SIR DAVID MAXWELL-FYFE: You tell us that you passed the money on to
Switzerland on his account?

VON NEURATH: I? Yes. Because Herr—Herr Glotz went to Switzerland. I
believe, indeed, his wife was non-Aryan.

SIR DAVID MAXWELL-FYFE: I see. I would just like to put the next
sentence and then I will leave this document:

    “I know too that Alfred Rosenberg, who lived in the same street
    with me, purloined a house from a Jew in similar fashion.”

Do you know anything of that?

VON NEURATH: I do not know how Herr Rosenberg acquired his house.

SIR DAVID MAXWELL-FYFE: Now, Defendant, I want you to come now to March
of 1938. Perhaps I can take this shortly if I have understood you
correctly. You know that the Prosecution complained about your reply to
the British Ambassador with regard to the Anschluss. As I understand
you, you are not now suggesting that your reply was accurate; but you
are saying that that was the best of your information at the time, is
that right?

VON NEURATH: Yes, that is quite correct. It is true. That was an
incorrect statement but I just did not know any better; do you see?

SIR DAVID MAXWELL-FYFE: You say that you did not hear—that neither
Hitler nor Göring told you a word about these ultimatums which were
given first of all to Herr Von Schuschnigg and secondly to President
Miklas; you were told nothing about that? Is that what you are telling?

VON NEURATH: No, at that time—at that time I knew nothing. I heard
about them later.

SIR DAVID MAXWELL-FYFE: My Lord, I am going to leave that. I am not
going into that incident in detail—we have been over it several
times—in view of the way that the defendant is not contesting the
accuracy.

THE PRESIDENT: I should like to know when he heard of the true facts.

SIR DAVID MAXWELL-FYFE: I am much obliged.

[_Turning to the defendant._] When did you hear of the true facts of the
Anschluss?

VON NEURATH: I heard the details for the very first time here, when this
report of Legation Counsellor Hewel was submitted to me. Prior to this
time I probably heard that there had been pressure exerted on Herr
Schuschnigg, but nothing else. I actually learned the exact details for
the first time here in Nuremberg.

SIR DAVID MAXWELL-FYFE: I only want to get it quite clear. You say that
between the 11th of March and your coming to Nuremberg, you never heard
anything about the threat of marching into Austria, which had been made
by the Defendant Göring, or Keppler, or General Muff on his behalf? You
never heard anything about that?

VON NEURATH: No, I heard nothing of that sort.

SIR DAVID MAXWELL-FYFE: Well, then I do want to ask you about the
assurance that you gave to M. Mastny, the Czechoslovak Minister in
Berlin. I would like you to look at Document TC-27 which you will find
in Document Book 12, Page 123 of Document Book 12. The passage that I
want to ask you about is in the sixth paragraph. After dealing with the
conversation with the Defendant Göring about the Czechoslovak
mobilization, it goes on:

    “M. Mastny was in a position to give him definite and binding
    assurances on this subject”—that is, the Czechoslovak
    mobilization—“and today”—that is, the 12th of March—“spoke
    with Baron von Neurath, who, among other things, assured him on
    behalf of Herr Hitler that Germany still considers herself bound
    by the German-Czechoslovak Arbitration Convention concluded at
    Locarno in October 1925.”

Now, you have told the Tribunal—we have had the evidence of Baroness
von Ritter—that the meeting on the 5th of November had this very
disturbing effect on you and in fact produced a bad heart attack. One of
the matters that was discussed at that meeting was attack, not only on
Austria but also on Czechoslovakia, to protect the German flank. Why did
you think, on the 12th of March, that Hitler would ever consider himself
bound by the German-Czechoslovak Arbitration Treaty which meant that he
had to refer any dispute with Czechoslovakia to the Council of the
League of Nations or the International Court of Justice? Why on earth
did you think that that was even possible, that Hitler would submit a
dispute with Czechoslovakia to either of these bodies?

VON NEURATH: I can tell you that quite exactly. I already testified
yesterday that Hitler had me summoned to him on the 11th for reasons
that I cannot explain up to this day and told me that the march into
Austria was to take place during the night. In reply to my question, or
rather to my remark that that would cause great uneasiness in
Czechoslovakia, he said that he had no intentions of any kind at this
time against Czechoslovakia and that he was—he even hoped that
relations with Czechoslovakia would be considerably improved by the
invasion or occupation of Austria.

From this sentence and from his promise that nothing would happen, I
concluded that matters would remain as they were and that, of course, we
were still bound to this treaty of 1925. Therefore, I was able to assure
M. Mastny of this with an absolutely clear conscience.

SIR DAVID MAXWELL-FYFE: Did you believe a word that Hitler said on the
12th of March? Did you still believe a word that Hitler said on the 12th
of March 1933?

VON NEURATH: Yes, still at that time.

SIR DAVID MAXWELL-FYFE: I thought Von Fritsch was a friend of yours;
wasn’t he?

VON NEURATH: Who?

SIR DAVID MAXWELL-FYFE: Colonel General Von Fritsch; he was a friend of
yours?

VON NEURATH: Yes, indeed.

SIR DAVID MAXWELL-FYFE: You did not believe that he had been guilty of
homosexuality did you?

VON NEURATH: No, never.

SIR DAVID MAXWELL-FYFE: Well, didn’t they—didn’t you know that he had
been subject in January 1938 to a framed-up charge?

THE PRESIDENT: Will you please answer instead of shaking your head.

VON NEURATH: Yes, I knew that, of course; and I learned of it and the
fact that this charge was a fabrication of the Gestapo but not of
Hitler, at least in my opinion.

SIR DAVID MAXWELL-FYFE: Well, didn’t you know that those—these unsavory
matters concerning Field Marshal Von Blomberg and Colonel General Von
Fritsch had been faked up by members of the Nazi gang, who were your
colleagues in the Government?

VON NEURATH: Yes. The details were unknown to me, of course.

SIR DAVID MAXWELL-FYFE: You see, you remember that at the time of
Munich, when you came back to the field—came back into activity for
some time, President Beneš did appeal to this German-Czechoslovak
Arbitration Convention and Hitler brushed the appeal to one side. Do you
remember that? In September 1938?

VON NEURATH: No; that, I do not know, for at that time I was not in
office any longer and I did not get to see these matters at all. I do
not know about that.

SIR DAVID MAXWELL-FYFE: Well, you don’t know; of course, it was in the
German press and every other press that he appealed to this treaty and
Hitler refused to look at it; but you say that you honestly believed on
the 12th of March that Hitler would stand by that Arbitration Treaty;
that’s what you said?

VON NEURATH: Yes, I had no misgivings.

SIR DAVID MAXWELL-FYFE: My Lord, that might be a convenient moment to
break off.

                        [_A recess was taken._]

SIR DAVID MAXWELL-FYFE: Defendant, you spoke yesterday with regard to
the memorandum of Lieutenant General Friderici. Do you remember in that
memorandum he referred to a memorandum of yours on how to deal with
Czechoslovakia?

Well, now, I would like you just to look at Document 3859-PS, so that
the Tribunal can see your attitude toward the Czechs from your own
words.

My Lord, that is at Page 107 of Document Book 12a.

[_Turning to the defendant._] I will read first your letter to Lammers
of the 31st of August 1940.

My Lord, that will be Exhibit GB-520.

[_Turning to the defendant._] You say:

    “Dear Herr Lammers: Enclosed I send you the memorandum which I
    mentioned in advance in my letter of 13 July 1940 ... about the
    question of the future organization of the Bohemian-Moravian
    country. I enclose another memorandum on the same question,
    which my Secretary of State K. H. Frank has drawn up
    independently of me and which, in its train of thoughts, leads
    to the same result”—I ask you to note, the next words—“and
    with which I fully agree. Please present both memoranda to the
    Führer and arrange a date for a personal interview for myself
    and State Secretary Frank. As I have heard from a private source
    that individual Party and other offices intend to submit
    proposals to the Führer for separating various parts of the
    Protectorate under my authority, without my knowing these
    projects in detail, I should be grateful to you if you would
    arrange the date for my interview early enough for me, as the
    competent Reich Protector and one who understands the Czech
    problem, to have an opportunity, together with my State
    Secretary, to place our opinions before the Führer before all
    sorts of plans are suggested to him by other people.”

Now, I would just like to take what I hope will be the gist of your own
memorandum. If you will turn it over—this is your memorandum—take the
first paragraph, Section I:

    “Any considerations about the future organization of Bohemia and
    Moravia must be based on the goal which is to be laid down for
    that territory from a state-political (staatspolitisch) and
    ethnic-political (volkspolitisch) point of view.

    “From a state-political standpoint there can be but one aim:
    total incorporation into the Greater German Reich; from an
    ethnic-political standpoint to fill this territory with
    Germans.”

And then you say that you point the path; and if you go on to Section
II, in the middle of Paragraph 2, you will find a subparagraph
beginning—

My Lord, it is the top of Page 109, Your Lordship’s copy:

    “These 7.2 million Czechs, of whom 3.4 millions live in towns
    and communities of under 2,000 and in the country, are led and
    influenced by an intelligentsia which is unduly puffed up in
    proportion to the size of the country. This part of the
    population also tried, after the alteration of the
    constitutional situation of this area, more or less openly to
    sabotage or at any rate postpone necessary measures which were
    intended to fit the circumstances of the country to the new
    state of affairs. The remainder of the population, that is small
    craftsmen, peasants, and workmen, adapted themselves better to
    the new conditions.”

Then, if you go on to Paragraph 3, you say:

    “But it would be a fatal mistake to conclude from this that the
    Government and population behaved in this correct manner because
    they had inwardly accepted the loss of their independent state,
    and incorporation into Greater Germany. The Germans continue to
    be looked upon as unwelcome intruders and there is a widespread
    longing for a return to the old state of affairs, even if the
    people do not express it openly.

    “By and large, the population submit to the new conditions but
    they do so only because they either have the necessary rational
    insight or else because they fear the consequences of
    disobedience. They certainly do not do so from conviction. This
    will be the state of affairs for some time to come.

    “But”—go on to Section III—“as things are like that, a
    decision will have to be taken as to what is to be done with the
    Czech people in order to attain the objective of incorporating
    the country and filling it with Germans as quickly as possible
    and as thoroughly as possible.

    “The most radical and theoretically complete solution to the
    problem would be to evacuate all Czechs completely from this
    country and replace them by Germans.”

Then you say that that is not possible because there are not sufficient
Germans to fill it immediately.

Then, if you go on to Paragraph 2, to the second half, you say—My Lord,
that is the last six lines of Page 110:

    “It will, where the Czechs are concerned, rather be a case on
    the one hand of keeping those Czechs who are suitable for
    Germanization by individual selective breeding, while on the
    other hand of expelling those who are not useful from a racial
    standpoint or are enemies of the Reich, that is, the
    intelligentsia which has developed in the last 20 years. If we
    use such a procedure, Germanization can be carried out
    successfully.”

Now, Defendant, you know that in the Indictment in this Trial we are
charging you and your fellow defendants, among many other things, with
genocide, which we say is the extermination of racial and national
groups, or, as it has been put in the well-known book of Professor
Lemkin, “a co-ordinated plan of different actions aiming at the
destruction of essential foundations of the life of national groups with
the aim of annihilating the groups themselves.” What you wanted to do
was to get rid of the teachers and writers and singers of
Czechoslovakia, whom you call the intelligentsia, the people who would
hand down the history and traditions of the Czech people to other
generations. These were the people that you wanted to destroy by what
you say in that memorandum, were they not?

VON NEURATH: Not quite. Here there are...

SIR DAVID MAXWELL-FYFE: But just before you answer, what did you mean by
saying, in the last passage that I read to you, “...expelling those who
are not useful from a racial standpoint or are enemies of the Reich,
that is, the intelligentsia which has developed in the last 20 years”?
Did you mean what you said? Were you speaking the truth when you said it
was necessary to expel the intelligentsia?

VON NEURATH: To that I can answer only “yes” and “no.” First of all, I
should like to say that from this report it becomes apparent that the
memorandum was written by Frank. I joined my name to it, and this was on
31 August 1940. The memorandum which I—the memorandum which is referred
to in the Friderici report is from a—is dated later I think, although I
do not know offhand.

SIR DAVID MAXWELL-FYFE: I think you will find—I will give you, in a
moment, the letter from Ziemke, who transmits Hitler’s view, and I think
you will find that it is this memorandum that Hitler is dealing with. I
will show you Frank’s memorandum in a moment. I am suggesting to you
now, as you say to Lammers, that you enclosed your memorandum and you
enclosed another memorandum, of which I will read you the essential part
in a moment, which is the memorandum of Karl Hermann Frank. But this is
a...

VON NEURATH: They are both by Frank.

SIR DAVID MAXWELL-FYFE: I’ll show it—no; but look at your own letter of
the 31st of August: “Enclosed I send you the memorandum,” and you go on:
“I enclose another memorandum... which my State Secretary K. H. Frank
has drawn up independently of me... with which I fully agree.” I am
suggesting to you, you know that this is your—this is your memorandum
referred to as the—in the Friderici document...

My Lord, that is Page 132 of Document Book 12.

[_Turning to the defendant._] ...where General Friderici says, “After
ample deliberation the Reich Protector expressed his view about the
various plans in a memorandum.” I am suggesting to you that this is your
memorandum which you sent on to Lammers for submission to the Führer.
Are you saying—are you really going to tell the Tribunal that this is
not your memorandum?

VON NEURATH: No, I do not want to say that at all. At the moment I
really do not know any longer. I did not write it, but I agreed with its
contents; the letter to Lammers says so.

SIR DAVID MAXWELL-FYFE: Well now, if you agreed with its contents, what
did you mean by saying that you would have to expel the intelligentsia,
except that you were going to break down the Czechs as a national entity
and expel the people who would keep going that history and tradition and
language? Isn’t that why you wanted to expel the intelligentsia?

VON NEURATH: I never mentioned the word “destroy,” but said that the
intelligentsia...

SIR DAVID MAXWELL-FYFE: I said “expel”...

VON NEURATH: I see.

SIR DAVID MAXWELL-FYFE: ...which is your own word.

VON NEURATH: The class of the intelligentsia was the greatest obstacle
to co-operation between Germans and Czechs. For that reason, if we
wanted to achieve this co-operation, and that was still the aim of our
policy, then this intelligentsia had to be reduced in some way and
principally their influence had to be diminished, and that was the
meaning of my explanation.

SIR DAVID MAXWELL-FYFE: Yes, you said to achieve your policy, but by
achieving your policy you meant to destroy the Czech people as a
national entity with their own language, history, and traditions, and
assimilate them into the Greater German Reich. That was your policy,
wasn’t it?

VON NEURATH: My policy was, first of all, to assimilate Czechoslovakia,
as far as possible. But in the final analysis that could not have been
achieved for generations. The first thing to do was to bring about
co-operation so as to have peace and order.

SIR DAVID MAXWELL-FYFE: Well, now before I put to you the memorandum of
Frank with which you entirely agree, would you look at Paragraph VII of
your own memorandum?

My Lord, it is Page 113 of Document Book 12a.

[_Turning to the defendant._] In Section VII you say:

    “If one considers the gigantic tasks facing the German nation
    after a victorious war, the necessity for a careful and rational
    utilization of Germans will be apparent to everyone. There are
    so many tasks that have to be tackled at once and simultaneously
    that a careful, well-thought-out utilization of the Germans who
    are suitable for carrying out these tasks is necessary.

    “The Greater German Reich will have to make use of the help of
    foreigners on a large scale in all spheres and must confine
    itself to appointing Germans to the key positions and to taking
    over branches of public administration where the interests of
    the Reich make it absolutely necessary...”

You were, in this memorandum, blueprinting the plans for dealing with
the Czechs after the war on the basis of the German victory; that is,
that they should disappear as a nation and become assimilated to the
German Reich. Wasn’t that what was in your mind?

VON NEURATH: To make the Czechs disappear as a nation was altogether
impossible. That was not possible at all. But they were to incorporate
themselves more closely into the Reich, and that is what I mean by the
word “assimilate.”

Moreover, it is also stated in this memorandum—earlier, much
earlier—that from the racial point of view—if you want to use that
unpleasant expression—there was an extraordinarily large number of
Germans within Czechoslovakia.

SIR DAVID MAXWELL-FYFE: Well now, just turn over and see how the—your
State Secretary’s memorandum with which you entirely agree—how that
runs.

My Lord, Your Lordship will find the beginning of that is enclosure
Number 2 on Page 115.

[_Turning to the defendant._] The State Secretary states his problem. He
says, in the second sentence:

    “The question as to whether the Protectorate, with a Reich
    Protector as its head, is suitable for settling the Czech
    problem and should therefore be retained or whether it should
    now give place to some, other form of government is being raised
    by various people and is the cause of this memorandum. It will
    briefly: (A) Indicate the nature of the Czech problem; (B)
    analyze the present way in which it is being dealt with; (C)
    examine the proposed alterations from the point of view of their
    suitability, and finally: (D) express an independent opinion on
    the whole question.”

Well now, I would like you just to look at your State Secretary’s
independent opinion with which you entirely agree.

THE PRESIDENT: Oughtn’t you to read the last two lines?

SIR DAVID MAXWELL-FYFE: Oh yes, My Lord, I’m sorry.

    “On a correct decision depends the solution of the Czech
    problem. We thus bear the responsibility for centuries to come.”

Now, My Lord, Frank’s own opinion starts on Page 121 in Section D of the
memorandum, and he begins by saying:

    “The aim of Reich policy in Bohemia and Moravia must be the
    complete Germanization of area and people. In order to attain
    this there are two possibilities:

    “I. The total evacuation of the Czechs from Bohemia and Moravia
    to a territory outside the Reich and settling Germans in the
    freed territory; or,

    “II. If one leaves the majority of the Czechs in Bohemia and
    Moravia the simultaneous application of a great variety of
    methods working toward Germanization, in accordance with an
    X-year plan.

    “Such a Germanization provides for: 1) The changing of the
    nationality of racially suitable Czechs; 2) the expulsion of
    racially unassimilable Czechs and of the intelligentsia who are
    enemies of the Reich, or ‘special treatment’ for these and all
    destructive elements; 3) the recolonizing of the territory thus
    freed with fresh German blood.”

Now, I want you just to turn to where your State Secretary gets down to
concrete suggestions as to this policy of Germanization. Remember that
you entirely agree, in your letter to Lammers.

If Your Lordship will turn to Page 123, there is a heading “Youth;
fundamental change in education; extermination of the Czech historical
myth.”

[_Turning to the defendant._] That is the first point: Destroy any idea
they might have of their history, beginning with the time of St.
Wenceslaus, nearly a thousand years ago. That is your first point.

    “Education toward the Reich idea; no getting on without perfect
    knowledge of the German language; first doing away with the
    secondary schools, later also with the elementary schools; never
    again any Czech universities, only transitionally the _Collegium
    Bohemicum_ at the German university in Prague; 2 years
    compulsory labor service.

    “Large-scale land policy, creation of German strongpoints and
    German bridges of land, in particular pushing forward of the
    German national soil from the north to the suburbs of Prague.

    “Campaign against the Czech language, which is to become merely
    a dialect as in the 17th and 18th centuries, and which is to
    disappear completely as an official language.

    “Marriage policy after previous racial examination.

    “In attempts at assimilation in the Reich proper, the frontier
    Gaue must be excluded.

    “Apart from continuous propaganda for Germanism and the granting
    of advantages as an inducement, severest police methods, with
    exile and ‘special treatment’ for all saboteurs. Principle:
    ‘Zuckerbrot und Peitsche.’”—What is that “Zuckerbrot und
    Peitsche”?

    “The employment of all these methods has a chance of success
    only if a single central Reich authority with one man at its
    head controls its planning, guiding, and carrying out. The
    direct subordination of the ‘master in Bohemia’ to the Führer
    clarifies the political character of the office and the task,
    and prevents the political problem from sinking down to an
    administrative problem.”

In other words, it was essential to this policy that you should keep
your job as Reich Protector and Frank should keep his as State
Secretary, and the Gauleiter of the Danube should not be able to
interfere and take away Brno as the capital of his Gau.

Defendant, do you tell this High Tribunal, as you told Dr. Lammers, that
you entirely agree with what I suggest to you are dreadful, callous, and
unprincipled proposals? Do you agree with these proposals?

VON NEURATH: No, I do not agree in the least.

SIR DAVID MAXWELL-FYFE: Well, why did you tell Lammers you did? Why,
when things were going well, did you tell Lammers that you did agree
with them?

VON NEURATH: Later I made an oral report to the Führer about this. Apart
from that, the statements which you just made show quite clearly that
this first memorandum was written by Frank, who then added the second
memorandum to it, and if you say, as you said at the end just now, that
it was my purpose to remain in office as Reich Protector, then I can
only tell you that the purpose, if there was a purpose in this
connection, was that Frank wanted to become Reich Protector. However,
from the point of view of the contents of this memorandum, I can
certainly no longer identify myself with them today, nor did I do so on
the occasion when I reported to the Führer. This becomes clear from the
testimony which I gave yesterday. This testimony...

SIR DAVID MAXWELL-FYFE: Well, I’m not concerned with your testimony
yesterday; I am concerned with what you wrote in 1940 when you
wrote—and I will read the words again; I have read them three times:

    “I enclose another memorandum on the same question which my
    State Secretary, K. H. Frank, has drawn up independently of
    me”—independently of me—“and which in its train of thoughts
    leads to the same result, and with which I fully agree.”

Why did you...

VON NEURATH: I have just now told you that I no longer agree with these
statements today, and that at the time when I verbally reported to the
Führer, I did not support these statements either, but to the contrary,
I made the proposals to him which I explained yesterday and to which I
received his agreement.

THE PRESIDENT: Sir David, are these documents correctly copied? Because
you see that in the letter of the 31st of August 1940 there is a
reference in the margin, “Enclosure 1; Enclosure 2.”

SIR DAVID MAXWELL-FYFE: Yes, My Lord.

THE PRESIDENT: Therefore, the letter identifies the document.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is so. The one is, as I am
suggesting, the defendant’s; the other is Frank’s.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: And you have mentioned, Defendant, about
what—that you dealt with them otherwise to the Führer. I suggest to you
that that is not true, that is not true that you dealt with them
otherwise to the Führer. I am putting it quite bluntly that it is not
true.

VON NEURATH: In that case I must regret to say that you are lying. For
I—I must know. After all, I must know whether I talked to the Führer. I
delivered a verbal report to him in person and Frank was not present.

SIR DAVID MAXWELL-FYFE: Well now, just let us look at the report, at
your report. Your Lordship will find it on Page 7.

We will see whether it is true or not.

THE PRESIDENT: Page what?

SIR DAVID MAXWELL-FYFE: Page 7, My Lord. It is Document D-739 of the
same book, 12a; it is Exhibit G-521.

Now, this is a memorandum, a secret memorandum of the representative of
the Foreign Office in the Office of the Reich Protector, of the 5th of
October.

[_Turning to the defendant._] You will remember your letter was the 31st
of August. It says:

    “Regarding the reception of the Reich Protector and State
    Secretary Frank by the Führer, I have learned the following from
    authentic sources:

    “To begin with, the Minister of Justice, Gürtner, gave a report
    on the Czech resistance movement, during the course of which he
    maintained that the first trial of the four chief ringleaders
    would shortly take place before the Peoples’ Court.

    “The Führer objected to this procedure and declared that
    execution squads were good enough for Czech insurgents and
    rebels. It was a mistake to create martyrs through legal
    sentences, as was proved in the case of Andreas Hofer and
    Schlageter. The Czechs would regard any sentence as an
    injustice. As this matter had already entered the path of legal
    procedure it was to be continued with in this form. The trials
    were to be postponed until after the war, and then amidst the
    din of the victory celebrations, the proceedings would pass
    unnoticed. Only death sentences could be pronounced, but would
    be commuted later on to life imprisonment or deportation.

    “Regarding the question of the future of the Protectorate, the
    Führer touched on the following three possibilities:

    “1. Continuation of Czech autonomy in which the Germans would
    live in the Protectorate as co-citizens with equal rights. This
    possibility was, however, out of the question as one had always
    to reckon with Czech intrigues.

    “2. The deportation of the Czechs and the Germanization of the
    Bohemian and Moravian area by German settlers. This possibility
    was out of the question too, as it would take 100 years.

    “3. The Germanization of the Bohemian and Moravian area by
    Germanizing the Czechs, that is, by their assimilation. The
    latter would be possible with the greater part of the Czech
    people. Those Czechs against whom there were racial objections
    or who were anti-German were to be excepted from this
    assimilation. This category was to be weeded out.

    “The Führer decided in favor of the third possibility; he gave
    orders via Reich Minister Lammers, to put a stop to the
    multitude of plans regarding partition of the Protectorate. The
    Führer further decided that, in the interests of a uniform
    policy with regard to the Czechs, a central Reich authority for
    the whole of the Bohemian and Moravian area should remain at
    Prague.

    “The present status of the Protectorate thus continues.”

And look at the last sentence:

    “The Führer’s decision followed the lines of the memoranda
    submitted by the Protector and State Secretary Frank.”

Now, Defendant, although you answered me so sharply a moment ago, that
document says that after the reception of the Reich Protector and the
State Secretary, the representative of the Foreign Office in your office
says that the decision of the Führer followed the lines of the memoranda
put forward by you and your State Secretary Frank. Why do you say that I
am wrong in saying it is untrue that a different line was followed by
the Führer? It is set out in that document.

VON NEURATH: To that I have the following reply to give: First of all,
the document shows that the Führer touched upon the following three
eventualities with reference to the question of the future of the
Protectorate. They are the three possibilities which I said yesterday I
had proposed. The document also shows, though not directly, that the
cause for this Führer conference was primarily quite a different one
than merely deciding the question of the Protectorate. On the contrary,
the Minister of Justice was present and a legal question in regard to
the treatment of the members of the resistance movement was the cause
for the discussion and Frank came to Berlin for this reason. I had been
to Berlin before that and I talked to the Führer, not about the
memorandum, which I had in my hand, but about my misgivings in general
and the future of our policy in the Protectorate. My report included
those proposals which are mentioned here under 1, 2, and 3.

It says there at the end, “The decision followed the lines of the
memoranda submitted by the Protector and State Secretary Frank.” That
remark was added by Herr Ziemke or whoever had written the document, but
what I said yesterday about the policy is correct. And even if I admit
that at that time in the letter to Lammers I did identify myself with
these enclosures it was nevertheless dropped.

SIR DAVID MAXWELL-FYFE: Well, I want to remind you that in the passage
which I referred to last in your memorandum, as opposed to that of
Frank, you were putting forward the organization of the Greater German
Reich. I take it in this way, that you envisaged yourself that in the
event of a German victory in the war the Czech part of Czechoslovakia
would remain part of a Greater German Reich.

VON NEURATH: No, I beg your pardon. It had already been incorporated and
here it is also expressly stated that it should remain in that
condition, as a protectorate but as a special structure.

SIR DAVID MAXWELL-FYFE: Well now, I just—are you saying that your
policy, after this period—this was in the autumn of 1940—that your
policy towards the Czechs was sympathetic?

VON NEURATH: I do not think it changed except when there were strong
resistance movements there.

SIR DAVID MAXWELL-FYFE: Well now, why was it that you forbade, in the
middle of 1941, any reference of the handling—to the discussion of the
handling and treatment of all questions about the German-Czech problem?
Why did you forbid its discussion?

VON NEURATH: To prevent these problems which were the cause of this
memorandum from arising again and again, namely the problem of
individual parts of the Protectorate being torn away and added to the
lower Danube or the Sudeten country with a general resettlement. That
was the purpose of my report to the Führer, as I explained yesterday, so
as to put a stop to that discussion once and for all.

SIR DAVID MAXWELL-FYFE: But you also—you particularly prohibited, did
you not, any public statements addressed to the Czech population? Well,
let us look at the document.

It is Document Number 3862-PS, My Lord. Your Lordship will find it at
Page 126 of Document Book 12a. My Lord, it becomes Exhibit GB-522.

[_Turning to the defendant._] It is for distribution through your
various offices and you say:

    “For the motive stated I order that in the future, when
    arrangements and publications of any kind concerning the
    German-Czech problem are made, the views of the whole population
    are more than ever to be directed to the war and its
    requirements while the duty of the Czech nation to carry out the
    war tasks imposed on it jointly with the Greater German Reich is
    to be stressed.

    “Other questions concerning the German-Czech problem are not
    suitable subjects for public discussion at the present time. I
    wish to point out that, without detriment to my orders,
    administrative handling and treatment of all questions about the
    German-Czech problem are to be in no way alluded to.”

Then the last paragraph:

    “Requisite public statements about the political questions of
    the Protectorate and in particular those addressed to the Czech
    population are my business and mine alone and will be published
    in due time.”

Why did you want to prohibit so severely the addressing of any public
statements to the Czech population?

VON NEURATH: That is addressed not only to the Czech population, but
especially to the Germans, and just for this reason—that was some
special event which I no longer remember—it says here “for the motive
stated I order that”—when there was again a discussion about the future
of the Protectorate or something was published. That was the reason and
I pointed out that that is why it was forbidden.

SIR DAVID MAXWELL-FYFE: Well now, I suggest to you about the—your
proposals and Frank’s speak for themselves. I want you to help me on one
other matter.

Do you remember after the closing of the universities that the question
arose, what was to happen to the students? There were about 18,000
students who were, of course, out of work because they could not...

VON NEURATH: I beg your pardon, I beg your pardon. There were not so
many; there were at the most 1,800 in all.

SIR DAVID MAXWELL-FYFE: No, you got it—with the greatest respect either
you are wrong or your office. According to the note from Group X of your
office:

    “According to the data at my disposal the number of students
    affected by the closure”—I should think that would include high
    schools as well—“for 3 years of the Czech universities is
    18,998.

    “According to the press communications, dated the 21st of this
    month only 1,200 persons were arrested in connection with the
    events of the 15th of this month.”

And then your office goes on to say by a process of subtraction that
leaves 17,800. You were faced with their occupation.

My Lord, it is Page 104, Document 3858-PS. Exhibit GB-523.

VON NEURATH: I do not want to deny my official’s statement. He must have
known better than I. I am merely surprised that there should have been
18,000 students in two Czech universities, in a country with a
population of 7 millions.

THE PRESIDENT: Hadn’t you better check that by the original?

SIR DAVID MAXWELL-FYFE: My Lord, I shall. I am much obliged to Your
Lordship. Well, My Lord, it is quite clear that both figures—they are
in figures, and they are 18,998, and then there is the check below, and
you have to take off 1,200; that leaves 17,800. My Lord, if it were only
1,800, the second figure could not arise.

DR. VON LÜDINGHAUSEN: Mr. President, somewhere there must be an error.
That would have been more for two universities in Czechoslovakia than
there were in Berlin at the best of times. There was a maximum of 8,000
to 9,000 in Berlin per year and in the case of a nation of only 7
millions there are supposed to be 18,000 students in two universities.
This cannot be right.

SIR DAVID MAXWELL-FYFE: My Lord, it may be that there are three age
groups. Your Lordship sees that it is “according to the data at my
disposal, the number of students affected by the closure for 3 years of
the Czech universities is 18,000.” It may be that is the intake for 2
years, in addition to present students.

[_Turning to the defendant._] Anyhow, this is the figure; and it is this
problem which has been dealt with by your Ministry. It may be that it
includes certain high schools, but at any rate, these are your
Ministry’s documents, and I want to know what happened. This was the
minutes, as I understand it, from Dennler, Dr. Dennler, who was the head
of Group X of your office, to Burgsdorff, who had a superior position;
and, if I may summarize it, this letter of 21 November 1939 suggests
that the students should be taken forcibly from Czechoslovakia to the
old Reich and put to work in the old Reich; and then, the next—on 25
November, you will notice that in Paragraph 2 it says—the writer, who
is Burgsdorff, is saying that he is dealing with X 119/39, which is
Dennler’s memorandum; and Burgsdorff says that he does not want them to
go into the Reich because at that time there was some unemployment in
the Reich, and suggests that they should be dealt with by compulsory
labor on the roads and canals in Czechoslovakia. Now, these were the two
proposals from your office.

My Lord, the second one is Document 3857-PS, which will be Exhibit
GB-524.

[_Turning to the defendant._] What happened to the unfortunate students?

VON NEURATH: Nothing at all happened to them.

SIR DAVID MAXWELL-FYFE: Well now, did either of these proposals of Dr.
Dennler for forced labor in the Reich and of Burgsdorff for forced labor
in Czechoslovakia, did they come up to you?

VON NEURATH: No, none of them.

SIR DAVID MAXWELL-FYFE: Did they come to you for decision? Did they come
to you for decision?

VON NEURATH: I think they were submitted to me, but I cannot tell you
for certain.

SIR DAVID MAXWELL-FYFE: Well, will you agree with me, or perhaps you
will be able to correct my knowledge, that this is the earliest
suggestion—you said it was not put into effect—but the earliest
suggestion of forced labor came from an officer of your department? Do
you know of any other department of the Reich that had suggested forced
labor as early as November 1939?

VON NEURATH: There is no connection, and, moreover, if you were to look
through suggestions made by all your subordinates, then you, too, might
find some proposal which you afterward rejected. Suggestions made by an
adviser do not mean anything at all.

Apart from that, perhaps I can clear up this figure of 18,000. Here it
says, “According to the data at my disposal, the number of students who
will be affected by closing the Czech universities for 3 years will be
18,000.” It is, therefore, three times 6,000, is it not? Which is
approximately 18,000.

SIR DAVID MAXWELL-FYFE: I had already put forward that suggestion,
Defendant, about 10 minutes ago, but I respectfully agree with you. That
is one matter in which we are not in difference.

Well now, you understand what I am suggesting. It is that these
proposals germinated in your office, because they were quite in keeping
with the proposals in the memoranda which I have just read to the
Tribunal, that you should not only get rid of Czech higher education,
but you should have forced labor. Do you remember that was in the State
Secretary’s memorandum? What I am suggesting is that it was in your
department—the idea of forced labor—as early as 21 November 1939.

Now, Defendant, I have only one other matter, and I hope, as it is a
question of fact, that perhaps you will be able to agree with me on
reflection. You suggested this morning that the German university in
Prague was closed down after the founding of Czechoslovakia in 1919.
That is how it came to us. On reflection, do you not know that it
continued and that many thousands of students graduated in the German
university of Prague between 1919 and 1939?

VON NEURATH: As far as I know, it was a department of the Czech
university, a German part of the Czech university, as far as I know.

SIR DAVID MAXWELL-FYFE: But it continued—it continued as a university?

VON NEURATH: Yes, it continued, but as a Czech university.

SIR DAVID MAXWELL-FYFE: Yes, but German students came there and could
take their degrees in German? It was a permitted language? I suggest to
you that there are thousands of people who went there from Austria and
from the old Reich—went there as Germans and took their degrees in
German.

VON NEURATH: Yes, only the old German university, the so-called Charles
University, was closed by the Czechs. But a German department, or
whatever one might call it, still remained. The Germans studied and took
their examinations there.

SIR DAVID MAXWELL-FYFE: I think the point is clear. I am not going to
argue about the actual thing, but that there was a German university,
where German students could study, you will agree.

THE PRESIDENT: Do the Prosecution wish to cross-examine further?

STATE COUNSELLOR OF JUSTICE M. Y. RAGINSKY (Assistant Prosecutor for the
U.S.S.R.): Defendant, tell us please, when you were Minister of Foreign
Affairs did Ribbentrop try to intervene in the foreign affairs of
Germany?

VON NEURATH: Is that a question?

MR. COUNSELLOR RAGINSKY: Yes, that is a question.

VON NEURATH: Yes.

MR. COUNSELLOR RAGINSKY: Would you please tell us in what form this
intervention took place?

VON NEURATH: By communicating to the Führer his own ideas on foreign
policy, without giving them to me for consideration.

MR. COUNSELLOR RAGINSKY: All right. Yesterday you stated here that in
1936 you had differences of opinion with Hitler and that on 27 of July
1936 you asked to be relieved of your duties as a Minister. This
document was cited here yesterday, but did you not write to Hitler
then?—and I will read the last sentence of your letter to him:

    “Even if I am no longer Minister, I shall be constantly at your
    disposal, if you so desire, with my advice and my years of
    experience in the field of foreign policy.”

Did you write these words in your letter to the Führer?

VON NEURATH: Yes indeed; yes indeed.

MR. COUNSELLOR RAGINSKY: And did you fulfill the promises you made to
Hitler? Whenever it was necessary to cover by diplomatic manipulations
the aggressive actions of Hitler, as for instance at the time of the
annexation of the Sudetenland, during the invasion of Czechoslovakia,
and so on? Did you help Hitler with your experience? Is that right?

VON NEURATH: That is a great mistake. On the contrary, as I have stated
here yesterday and today, I was called in by Hitler only once; and that
was on the last phase of the Austrian Anschluss. With that my activities
came to an end, but in 1938, to be sure, I went to see him of my own
accord, to restrain him from starting the war. That was my activity.

MR. COUNSELLOR RAGINSKY: We have already heard this. I would like to ask
you another question concerning the memorandum of Friderici without
repeating what has already been said here concerning it. You remember
this memorandum well, as it was just presented to the Court a short time
ago. In the last part of the memorandum of Friderici—it is the last
paragraph but one—it is stated:

    “If the governing of the Protectorate were in reliable hands and
    guided exclusively by the order of the Führer of the 16th of
    March 1939, the territory of Bohemia and Moravia would become an
    integral part of Germany.”

It was for this purpose that Hitler chose you to be Protector; is that
not so?

VON NEURATH: Not a bit; that was not the reason at all. The reason
was—I have described it in detail yesterday.

MR. COUNSELLOR RAGINSKY: All right. We shall not repeat the reasons; we
spoke about them yesterday.

Well, you deny that you were precisely the man who was supposed to carry
through the invasion of Czechoslovakia?

VON NEURATH: To that I can only answer “no.”

MR. COUNSELLOR RAGINSKY: All right. Do you admit that you were, in the
Protectorate, the only representative of the Führer and of the
Government of the Reich, and that you were directly subordinate to
Hitler?

VON NEURATH: Yes, that is right; that is stated in Hitler’s decree.

MR. COUNSELLOR RAGINSKY: Yes, it is stated there. I will not read this
decree, which would only delay the interrogation. This decree has
already been presented to the Court.

Do you acknowledge that all administrative organs and authorities of the
Reich in the Protectorate with the exception of the Armed Forces, were
subordinate to you?

VON NEURATH: No. I am sorry to have to say that that is a mistake. That
is also stated in the same decree of 1 September 1939. Apart from that,
there were numerous other organizations, that is, Reich authorities,
which were not under my jurisdiction; quite apart from the Police.

MR. COUNSELLOR RAGINSKY: Well, as far as the Police are concerned, we
will speak about that separately. So you think it is a mistake that the
decree does not mention it, or do you interpret the decree otherwise?

I shall read the first paragraph of the decree of 1 September 1939. It
is stated there:

    “All the authorities, offices and organizations of the Reich in
    the Protectorate of Bohemia and Moravia, with the exception of
    the Armed Forces, are under the jurisdiction of the Reich
    Protector.”

It is also stated in Paragraph 2:

    “The Reich Protector supervises the entire autonomous
    administration of the Protectorate.”

And Paragraph 3:

    “The office of the Reich Protector is in charge of all
    administrative branches of the Reich administration with the
    exception of the Armed Forces.”

As you see, it is stated very bluntly and definitely here that all the
institutions of the Reich were subordinate to you, while you were
subordinate to Hitler.

VON NEURATH: I have to tell you again that as to administrative
agencies, yes; but there were a number of other authorities, Reich
authorities and offices which did not come under my jurisdiction, for
instance, the Four Year Plan.

MR. COUNSELLOR RAGINSKY: Now let us pass to the question of the Police.
Yesterday, in answer to a question of your counsel, you stated to the
Tribunal that as to this decree of 1 September, signed by Göring, Frick,
and Lammers, Paragraph 13 was not comprehensible to you. Let us examine
other paragraphs of the same chapter concerning the Police.

Paragraph 11 says:

    “The organs of the German Security Police in the Protectorate of
    Bohemia and Moravia have the task of investigating and combating
    all hostile attempts toward the government and population in the
    territory of the Protectorate, informing the Reich Protector as
    well as the subordinate organizations, keeping them currently
    informed on important events, and advising them as to what to
    do.”

Paragraph 14 of the same decree states:

    “The Reich Minister of the Interior (the Reichsführer SS, and
    the Chief of the German Police), with the agreement of the Reich
    Protector in Bohemia and Moravia releases the legal and
    administrative directives necessary for carrying out this
    order.”

Thus, according to this decree, the Police and the SS were obliged to
let you know about all their measures and, moreover, all their
administrative and legal acts and measures had been carried out with
your knowledge. Do you acknowledge that?

VON NEURATH: No; that is not right. First of all, there was at one time
an order that they were to inform me. But that was not carried out and
was forbidden by Himmler directly. And the other, the second regulation
to the effect that the administrative measures—or whatever it is
called—could or should be carried out with my approval, was never
applied.

MR. COUNSELLOR RAGINSKY: So you deny it?

VON NEURATH: Yes.

MR. COUNSELLOR RAGINSKY: I now present to you the testimony of Karl
Hermann Frank, of 7 March 1946, on this very question; that is, on the
question of the Police and to whom they were subordinated.

Mr. President, I present this testimony as Exhibit Number USSR-494.

THE PRESIDENT: Is this in the English book as well, do you know?

MR. COUNSELLOR RAGINSKY: No, Mr. President. This document that I am
presenting now is an original, signed by Frank.

[_Turning to the defendant._] Karl Hermann Frank, during an
interrogation, testified:

    “According to the order on ‘The Structure of the German
    Administration in the Protectorate and the German Security
    Police,’ all German authorities and offices in the Protectorate
    and thereby the entire Police, too, excepting the Armed Forces
    are formally subordinated to the Reich Protector and are bound
    by his directions. Owing to this the Security Police was bound
    to carry out this basic political policy set forth by the Reich
    Protector. Orders as to carrying out State Police measures were
    mainly issued by the Chief of the Security Police with the Reich
    Security Main Office in Berlin.

    “If the Reich Protector wanted to carry out some State Police
    measures, he had to have the permission of the Reich Security
    Main Office in Berlin; that is, in this case the State Police
    also submitted each order for reconfirmation to the Reich
    Security Main Office in Berlin. The same applied also to
    directives for the carrying out of State Police measures given
    by the Higher SS and Police Leader to the Chief of the Security
    Police.”

I would like to draw your attention to this paragraph that I am reading
now:

    “This system of channels for issuing directives remained in
    force during the whole existence of the Protectorate and was
    used as such by Von Neurath in the Protectorate. In general the
    Reich Protector could, on his own initiative, issue directives
    to the State Police through the Chief of the Security Police.
    The carrying out of such directives was, however, subject to
    approval by the Reich Security Main Office if State Police
    measures were concerned.

    “In regard to the SD (Security Service), which had no executive
    powers, the authority of the Reich Protector respecting the
    issuing of directives to the SD was greater and not subject to
    the approval of the Reich Security Main Office in every case.”

Do you confirm this testimony of Frank?

VON NEURATH: No.

MR. COUNSELLOR RAGINSKY: All right.

VON NEURATH: I refer you to a statement by the same Frank, which I have
learned about here, which was made last year, during which he said
something quite different. He said that the entire Police were not under
the Reich Protector, but came under the Chief of the Police in Berlin,
namely, Himmler. It ought to be here somewhere—this statement.

MR. COUNSELLOR RAGINSKY: Don’t worry about it; I will come back to this
testimony.

Tell me, please, who was the political adviser in your service?

VON NEURATH: Political adviser?

MR. COUNSELLOR RAGINSKY: Yes, political adviser.

VON NEURATH: In general I had various political advisers.

MR. COUNSELLOR RAGINSKY: In order not to waste time, I will show you a
short document, and I ask you to read it.

On 21 July 1939 the Chief of the Security Police wrote a letter to your
State Secretary and Higher SS and Police Leader, Karl Hermann Frank. The
letter had the following contents:

    “In an order of 5 May 1939 the Reich Protector of Bohemia and
    Moravia appointed the SD Leader and Chief of the Security Police
    as his political adviser. I have ascertained that this order has
    not yet been published or carried out. Please provide for
    carrying out this order.

    “Signed, Dr. Best.”

Do you remember your order now?

VON NEURATH: I cannot remember that decree at the moment, but I do
remember that this was never carried out, because I did not have this SD
leader as my political adviser.

THE PRESIDENT: This would be a convenient time to break off.

MR. COUNSELLOR RAGINSKY: Mr. President, just one more minute, please, to
finish this question, and then we can break off.

[_Turning to the defendant._] But did you issue such an order on 5 May?

VON NEURATH: I can no longer tell you about that at this date—but it is
probably true. I do not want to deny it; I do not know any more.

MR. COUNSELLOR RAGINSKY: But you did issue this order?

All right. I thank you, Mr. President. It is possible to adjourn now. I
shall require 30 minutes more.

     [_The Tribunal adjourned until 26 June 1946, at 1000 hours._]




                    ONE HUNDRED AND SIXTY-FOURTH DAY
                         Wednesday, 26 June 1946


                           _Morning Session_

THE PRESIDENT: The Tribunal will not sit on Thursday, tomorrow
afternoon, in open session, but will sit in closed session. That is to
say, we will sit tomorrow, Thursday, from 10 till 1 in open session, and
we will sit in the afternoon in closed session.

On Saturday morning, the Tribunal will sit in open session from 10 till
1.

MR. COUNSELLOR RAGINSKY: Mr. President, I am aware that yesterday when I
submitted the Document USSR-494, the necessary copies of this document
were not submitted to the Tribunal. I am very sorry about this, and I
would ask you to accept the necessary copies now which I am going to
submit.

[_The Defendant Von Neurath resumed the stand._]

Let us go back, Defendant, to your warning issued in August 1939. If I
understood you correctly, you said here before the Tribunal that this
warning was issued in connection with the military situation of the
time; is that correct?

VON NEURATH: With reference to the military situation nothing had
happened at that time; absolutely no political tension had become
noticeable in the meantime; therefore, it was not directly in connection
with the military situation. There was certainly nothing wrong yet at
that time.

MR. COUNSELLOR RAGINSKY: That is regardless of the military situation,
all right. Do you acknowledge that by this order of yours, or by this
warning, you had introduced a system of hostages? Do you admit that?

VON NEURATH: I did not understand the question.

MR. COUNSELLOR RAGINSKY: I am going to repeat the question. I am asking
you, do you acknowledge that by means of this warning of August 1939—I
am submitting this document as evidence under Document Number
USSR-490—that by this order you were setting up a system of hostages?
Do you admit that?

VON NEURATH: I did not understand.

MR. COUNSELLOR RAGINSKY: Was it correctly translated to you just now?

VON NEURATH: Yes; the translation did not come through on the last
question, or rather the last sentence. I did not understand the last
sentence.

MR. COUNSELLOR RAGINSKY: Well, I will put it to you that you know the
document well.

VON NEURATH: Yes; but I did not understand the last sentence of your
question.

MR. COUNSELLOR RAGINSKY: I shall try to say it in such a way that you
will understand it now. In this order of yours, in the penultimate
paragraph, it is stated, “The responsibility for all acts of sabotage
will be borne not only by the individual perpetrators, but by the entire
Czechoslovak population.” This means that not only guilty persons have
to be punished, but there were punishments set up for innocent people
too. With this order you inaugurated the mass terrorism against the
Czech population.

VON NEURATH: Not at all. It only meant that the moral responsibility for
any possible acts was to be laid to the account of the Czech people.

MR. COUNSELLOR RAGINSKY: Well, in Lidice, was this not applied in
practice? Was it only a question of the moral responsibility there?

VON NEURATH: Yes, yes.

MR. COUNSELLOR RAGINSKY: In this order you state the following: “Those
who do not take these necessities into account will be considered
enemies of the Reich.” To the enemies of the Reich you applied only the
principles of moral responsibility and nothing else?

VON NEURATH: Yes, if someone did not obey orders, then naturally he was
punished.

MR. COUNSELLOR RAGINSKY: That is exactly what I am trying to determine
and that is why I put this question to you, that just by this order of
August 1939 you started the general terrorism of a massacre and
punishment of innocent people.

VON NEURATH: Well, I do not know how you can draw this conclusion from
this warning.

MR. COUNSELLOR RAGINSKY: We are going now to the deductions which we can
make out of this. In the report of the Czechoslovak Government,
submitted as evidence, Document USSR-60, which is a report on the final
result of the investigation of the crimes committed by you and your
collaborators, all this has been stated. And you just flatly deny all
this documentary evidence. I am not going to argue with you regarding
this document, but I am going to read into the record some of the
testimony by the witnesses; and I would like you to reply whether you
corroborate this evidence or whether you deny it. I am going to read
into the record an excerpt from the testimony of the former Minister of
Finance, Josef Kalfus, of 8 November 1945.

The Tribunal will find these excerpts on Page 12 of the English text,
Document USSR-60.

Kalfus stated:

    “The economic system introduced by Neurath and after him by the
    later German regime, was nothing else than systematic, organized
    robbery. As to the occupation of decisive positions in the Czech
    industry and finance, it should be pointed out that, together
    with Neurath, a vast economic machinery was installed, which
    immediately occupied the chief positions in industry. The Skoda
    Works, Brno Armament Works, steel works at Vitkovice, important
    banks—Bohemian Discount Bank, Länder Bank, and Bohemian Union
    Bank—were occupied as well.”

Do you corroborate this evidence?

VON NEURATH: I talked about this matter in great detail yesterday, and I
refer you to my statement I made yesterday. I have nothing to add.

MR. COUNSELLOR RAGINSKY: Thus, you do not corroborate this evidence?

VON NEURATH: Not in the least.

MR. COUNSELLOR RAGINSKY: The former, President of Bohemia, Richard
Bienert, during the interrogation of 8 November 1945, stated—Mr.
President, this excerpt is on Page 13 of the English text of the
Document USSR-60:

    “When we got to know him more closely, we noticed that he,
    Neurath, was ruthless toward the Czechs. As the Landespräsident
    of Bohemia I knew that it was Neurath who subjected the
    political administration in Bohemia and Moravia to German
    control, both the state administration and the local government
    as well. I remember also that Neurath caused the abolition of
    the local school counsellors, and the appointment of German
    school inspectors in their place. Neurath ordered the
    dissolution of the regional representative bodies; he caused
    Czech workers to be sent to the Reich from April 1939 onward in
    order to work for the war machine of the Reich. He ordered the
    closing down of the Czech universities and of many Czech
    secondary and elementary schools.

    “He abolished the Czech sport clubs and associations, such as
    Sokol and Orel, and ordered the confiscation of all the property
    of these gymnastic organizations; he abolished ... the Czech
    recreation homes and sanatoria for young workmen and students,
    and ordered the confiscation of their property. The Gestapo
    carried out the arrests, but on the order of the Reich Protector
    ... I myself was arrested on 1 September 1939, as well.”

Will you still deny this testimony?

VON NEURATH: No, no. About all the matters which are listed here, I
spoke yesterday in great detail. I do not intend to repeat it all over
again now. Moreover, it seems strange to me that Mr. Bienert of all
people, who knew perfectly well what I had ordered and what my relations
were to the Gestapo and so forth, that Mr. Bienert of all people should
say things like that.

MR. COUNSELLOR RAGINSKY: Very well. Let us look at some other testimony.
The former Prime Minister of the so-called Protectorate, Dr. Krejci,
during the interrogations on 8 November 1945, stated...

Mr. President, this excerpt can be found on Page 17 of the English text
of the Document USSR-60. Krejci testified:

    “I know that the gymnastic associations were disbanded and their
    property confiscated at the order of the Reich Protector, and
    their funds and equipment handed over to be used by German
    associations such as SS, SA, Hitler Youth, and so on. On 1
    September 1939, when Poland was attacked by the German Army,
    arrests took place on a large scale, especially arrests of army
    officers, intellectuals, and important political personalities.
    The arrests were made by the Gestapo, but it could not be done
    without the approval of the Reich Protector.”

I am reading into the record one more excerpt from the next page of the
testimony:

    “As far as the Jewish problem was concerned, the Government of
    the Protectorate was forced by the Reich Protector into a
    campaign against the Jews, and when this pressure had not the
    desired result, the Germans—or the Reich Protector’s
    office—started persecuting the Jews according to the German
    laws. The result was that tens of thousands of Jews were
    persecuted and lost their lives and property.”

Are you going to deny this testimony, too?

VON NEURATH: With reference to the order which you mentioned at the
beginning, concerning the sport clubs, I have to tell you that that was
a police measure which I had not ordered; and I go on to repeat, as I
said yesterday, that the arrests at the beginning of the war were
carried out by the Gestapo, by direct order from Berlin, without my even
having heard about the matter. I did not learn about it until afterward.
Finally, with reference to the Jewish problem which is mentioned in the
end, the statement which is contained in the Indictment, I think,
namely, that I had attempted to get the Government of Czechoslovakia to
introduce anti-Jewish laws, is an incorrect statement. I, or rather my
State Secretary, talked to Mr. Elias, as far as I know. I myself have
never talked to him. I talked to Mr. Hacha only afterward on a later
occasion, when there was an attempt to introduce racial laws with
reference to the Czechs; Mr. Hacha objected to this and I told him he
did not have to do this, as this was my responsibility.

The introduction of the anti-Jewish laws was carried out by a decree of
mine, to be sure, because as early as the beginning of April 1939, I had
received orders to introduce the anti-Jewish legislation in the
Protectorate which was not incorporated in the Reich. I delayed this
step until July by means of all sorts of inquiries in Berlin, so as to
give time to the Jews to prepare themselves in some way or other. These
are the actual facts.

MR. COUNSELLOR RAGINSKY: Tell me, do you know Dr. Havelka?

VON NEURATH: I know Herr Havelka, yes.

MR. COUNSELLOR RAGINSKY: He knew exactly about your conversation with
Hacha?

VON NEURATH: Well, how much he knew about that, I do not know. Herr
Havelka came to see me once or twice. He was Transport Minister, I
think.

MR. COUNSELLOR RAGINSKY: Yes, that is quite correct. He was the Minister
of Transport, but before that, he was the head of the chancellery of
Hacha’s office.

Havelka, during his interrogation on 9 November last year, gave the
following testimony, which can be found on Pages 18 and 19 of the
English text of Exhibit USSR-60—I am quoting an excerpt:

    “He”—Neurath—“was not interested in the Czech nation and
    interventions of Cabinet members and Dr. Hacha pressing Czech
    demands were on the whole without any result.

    “There were the following actions in particular:

    “Arrests of Czechoslovak officers, intelligentsia, members of
    the Czechoslovak Legion of the first World War, and politicians.
    At the time of the attack on Poland by the German Army about six
    to eight thousand persons were arrested. They were hostages. The
    Germans themselves called them ‘held in protective custody.’ The
    majority of those hostages were never interrogated, and all
    steps taken at the office of the Reich Protector in favor of
    these unfortunate men remained without any result.

    “Neurath, as the only representative of the Reich Government in
    the territory of the Protectorate of Bohemia and Moravia, was
    responsible for the execution of nine students on 17 November
    1939. The execution was carried out soon after...”

THE PRESIDENT: General Raginsky, would it not be better and perhaps
fairer to the defendant to ask him one question at a time? You are
reading long passages of these documents which contain many questions.
Perhaps you could take these two paragraphs you read now about the
arrest of officers and ask him whether he says those are true or untrue,
and then go on to the other paragraphs you want. It is very difficult
for him to answer a great number of questions at one time.

MR. COUNSELLOR RAGINSKY: Mr. President, he has these documents before
him and he is acquainted with the testimonies in question, but I will
take into consideration what you have just told me. I will speak about
the shooting of the students separately.

[_Turning to the defendant._] Do you corroborate this part of the
evidence which I have just read into the record regarding the hostages?

VON NEURATH: About the arrest of the members of the so-called Vlayka, at
the beginning of September 1939, I have spoken earlier, and I spoke in
detail about that yesterday.

I said that these arrests—I am repeating it once more—were carried out
by the Gestapo without my knowledge. Herr Havelka’s statement, that no
steps had been taken in the interest of these people, is untrue. He
ought to know that I continuously fought for these people and that a
large number of them were released through my efforts.

MR. COUNSELLOR RAGINSKY: Very well, let us go over to another question.
Here, before this Tribunal, a certain document has already been
introduced several times under Document Number USSR-223. This is the
diary of Frank.

Mr. President, I am not referring to Karl Hermann Frank, who was
sentenced to die for his crimes, but it is the Defendant Frank that I am
speaking about. This excerpt has already been quoted here, but I should
like to put a question to the defendant about it. I shall read it into
the record. During an interview with a correspondent of the _Völkischer
Beobachter_ in 1942, the Defendant Frank stated as follows:

    “In Prague, for instance, some red placards were put out saying
    that seven Czechs were being shot that day. Then I told myself
    if I had to issue an order for such placards to be put up
    regarding every seven Poles who were shot, then there would not
    be enough timber in Poland to manufacture enough paper for such
    placards.”

Please tell me if it is true that such red placards were put up in
Prague?

VON NEURATH: I mentioned that yesterday. I have already said yesterday
that this was the poster where my signature was misused, and that I had
not seen it in advance. That is that red poster.

MR. COUNSELLOR RAGINSKY: Well, if you have not seen these posters, will
you please look at them. We are going to show it to you right now.

VON NEURATH: Yes, I know it very well.

THE PRESIDENT: General Raginsky, he did not say he had not seen it. He
said it was put up without his knowledge.

MR. COUNSELLOR RAGINSKY: Mr. President, I am going to come back to this,
but I should like to establish that these were the red posters which
were mentioned by Frank in his diary, and I should like to submit this
poster under Document Number USSR-489.

I should like to read it into the record; it is very short and it will
not take much time. The text is as follows:

    “In spite of repeated serious warnings, a number of Czech
    intellectuals, in collaboration with _émigré_ circles abroad,
    are trying to disturb peace and order in the Protectorate of
    Bohemia and Moravia by committing major or minor acts of
    resistance. In this connection it was possible to prove that the
    ringleaders of these resistance acts are especially to be found
    in the Czech universities. Since on 28 October and 15 November
    these elements gave way to acts of physical violence against
    individual Germans, the Czech universities have been closed for
    the duration of 3 years, nine of the perpetrators have been
    shot, and a considerable number of the participants have been
    arrested.

    “Signed, The Reich Protector of Bohemia and Moravia, Freiherr
    von Neurath, Prague, 17 November 1939.”

You state here that you never signed this warning? Have I understood you
rightly?

VON NEURATH: Yes, indeed. I have already explained yesterday or the day
before how this came about, namely, in my absence.

MR. COUNSELLOR RAGINSKY: Well, you should not repeat what you have
already stated.

I am going to read into the record a certain statement by Karl Hermann
Frank of 26 November 1945, connected with the subject. It can be found
on Pages 46 and 47 of the Russian text. The English text will be
submitted. Karl Hermann Frank, giving evidence regarding this poster,
the text of which I have just read into the record, stated:

    “This document was dated 17 November 1939 and was signed by Von
    Neurath who did not object either to the shooting of the nine
    students...”

DR. VON LÜDINGHAUSEN: Mr. President, may I draw your attention to
something connected with this document. The document is neither dated
nor is it signed, at least not the copy I have. It does not make it at
all clear from whom the document originates, and I should like to take
this opportunity to protest against the reading of this document.

THE PRESIDENT: Dr. Von Lüdinghausen, is there not a certificate about
the document?

DR. VON LÜDINGHAUSEN: Not in my copy.

THE PRESIDENT: Well...

MR. COUNSELLOR RAGINSKY: Mr. President, will you permit me to explain
this misunderstanding. Dr. Von Lüdinghausen has the full text of the
Document USSR-60. The English text was also submitted to the Tribunal.
This document was quoted yesterday by Dr. Lüdinghausen. There is a
certificate regarding the authenticity of this document signed by the
plenipotentiary of the Czechoslovak Government, and there is the date,
too.

Now, just to facilitate the proceedings, we have submitted another copy
of Frank’s testimony to Dr. Lüdinghausen, and it would be very easy to
determine that there is a certificate regarding the authenticity of this
statement which is dated 17 November...

DR. VON LÜDINGHAUSEN: I should like to say the following about this
point: When I received this long indictment from Colonel Ecer of the
Czech Delegation, the document did not have any additions or appendices,
except texts of laws. I therefore endeavored to obtain these additions
because reference had been made to them. I then received only one annex
to an appendix, or supplement “Number 2”; the others I received in the
same condition as the one which I have here.

THE PRESIDENT: Dr. Von Lüdinghausen, will you wait a minute? Will you
kindly tell us what document it is you are referring to?

DR. VON LÜDINGHAUSEN: It is USSR-60.

THE PRESIDENT: USSR-60—well, that is the Czech report, is it not?

DR. VON LÜDINGHAUSEN: That is the Czech report, which is about this
thick [_indicating_] in German; that is the one in question. Annexes
have also been issued to this, and these annexes, I repeat, were not
made available to me; that is, I made a personal effort to get them, but
I received only one which is not identical with this document and which
I received much later and in the same condition as that which I hold in
my hand now, that is to say, without a heading, without a signature, and
without a date, and most certainly without any certificate as to when,
where, and by whom this supposed statement of Frank’s was taken down.

THE PRESIDENT: Let us hear what General Raginsky has got to say about
it.

As I understand General Raginsky, he says there is a certificate
identifying that document and what is being supplied to you is merely a
copy, which may not have the date and may not have the certificate on
it, but which is the same as the document which is certified.

Is that what you said, General Raginsky?

MR. COUNSELLOR RAGINSKY: Yes.

THE PRESIDENT: Could you now show Dr. Von Lüdinghausen the certificate
and the document which is certified?

MR. COUNSELLOR RAGINSKY: This certificate can be found on Page 44 of the
Russian text in the appendix to Document USSR-60 and it is signed for
General Ecer by Colonel of the General Staff Corps, Novack. This
certificate was submitted, in due course, by us to the Tribunal.

THE PRESIDENT: Is it necessary to take up the time of the Tribunal about
this particular document? It seems to me we are wasting a lot of time.

DR. VON LÜDINGHAUSEN: After all, it is important. Otherwise I cannot
find out whether it is genuine. That is certainly my right.

THE PRESIDENT: I was asking General Raginsky whether he wanted to
persist in the use of the document. Is it worth while? I do not know
what the document is or what it says.

MR. COUNSELLOR RAGINSKY: I consider that is not necessary, because this
document has already been submitted to the Tribunal a few months ago and
accepted by the Tribunal as evidence. I really do not understand the
statements by Dr. Von Lüdinghausen.

THE PRESIDENT: Why do you not show Dr. Von Lüdinghausen that there is a
certificate which applies to the document which you put in his hand?

MR. COUNSELLOR RAGINSKY: Yes, certainly, Mr. President. I am holding in
my hand the Russian text of the certificate. I am quoting the Russian
text and I can present it to Dr. Von Lüdinghausen so that he can be
convinced. The original document has been submitted to the Tribunal and
is in the possession of the Tribunal.

THE PRESIDENT: Well, is there not a German translation of the
certificate and does not the certificate identify the document? Is there
a German translation of the certificate?

MR. COUNSELLOR RAGINSKY: Just at the moment I do not have it, but during
the intermission I shall be glad to produce the original German
document.

THE PRESIDENT: Dr. Von Lüdinghausen, the Tribunal is told that this
document was put in before and the certificate of General Ecer was put
in at the same time, certifying that this document is a part of the
Czech report. In those circumstances, the Tribunal will allow the
document to be used.

DR. VON LÜDINGHAUSEN: Mr. President, then I have another objection to
the use of this document.

As is known, if any interrogation transcripts or affidavits from
witnesses are presented, the Defense have the right to summon these
witnesses for an interrogation. The former State Secretary Frank, who
has made this statement, is, however, as is known, no longer among the
living. Therefore, I also object for this reason to the use of this
document.

MR. COUNSELLOR RAGINSKY: Mr. President...

THE PRESIDENT: Dr. Von Lüdinghausen, this document was offered and
accepted in evidence during the lifetime of this man, K. H. Frank. That
is one reason for accepting it.

The document is admissible under Article 21 of the Charter and was
submitted under that article and there is no such rule as you have
stated, that the Defense are entitled to cross-examine every person who
makes an affidavit. It is a matter entirely within the discretion of the
Tribunal and therefore that objection is rejected.

MR. COUNSELLOR RAGINSKY: Mr. President, I do not want to hold you any
longer on this matter but I wanted to show that this was an unnecessary
delay as Dr. Von Lüdinghausen used the document himself to introduce
some extracts from the testimony of Frank in his document book.

Now I shall read into the record some statements made by Frank. This
document, I repeat, is in connection with the warning dated 17 November
1939 which we just exhibited to this Tribunal, and signed by Von
Neurath, who did not raise his voice either against the shooting of the
nine students nor as to the number of students who were to be sent to
concentration camps, and he did not really request any changes in this
legislation.

[_Turning to the defendant._] Did you hear the testimony, Defendant?

VON NEURATH: Yes, I have read it.

MR. COUNSELLOR RAGINSKY: Do you deny this?

VON NEURATH: But most definitely. There was no possibility whatever of
my doing so because I was not in Prague and consequently I could neither
have had any knowledge of it, nor could I have signed it or passed it
on.

MR. COUNSELLOR RAGINSKY: Very well. You still insist on stating that the
Police never informed you regarding the arrests which were made and
other police measures which were taken? Do you state that firmly?

VON NEURATH: I did not say that they never informed me, but that they
always informed me afterward. My information always came from Czech
sources.

MR. COUNSELLOR RAGINSKY: Was not the state of affairs such that the
Police regularly reported to you regarding the important events which
took place?

VON NEURATH: Not at all. In particular I never learned anything about
what they were planning, at least not until afterward—or if I had
learned it from Czech sources and then made inquiries with the Police.

MR. COUNSELLOR RAGINSKY: Very well. I am going to read an extract from
the testimony of Karl Hermann Frank, dated 7 March 1946. This testimony
was submitted by me to the Tribunal yesterday and it was partially read
by me already. Will you give a copy of the testimony, USSR-494, to the
defendant, please?

Frank states:

    “The Reich Protector, Von Neurath, regularly received reports on
    the most important events in the Protectorate which had some
    bearing on the Security Police, from me, from the State
    Secretary, as well as from the Chief of the Security Police. For
    example, Von Neurath was informed in the special case concerning
    the student demonstrations in November 1939 both by me and by
    the Chief of the Security Police. This case dealt with Hitler’s
    direct orders demanding the shootings of all the ringleaders.
    The number of ringleaders was to be fixed by the Prague Stapo
    and the Reich Protector was informed about this. In this case an
    estimate on the number of the ringleaders was left to the
    discretion of the State Police, or rather to the approval of the
    Reich Protector. Reich Protector Von Neurath signed the official
    dispatch announcing the execution of these students, thereby
    approving this action. It can therefore not be said that in this
    case the Reich Protector was merely responsible for the carrying
    out of the general Hitler order which deals with the execution
    of all ringleaders, but that he is also responsible for the
    fixing of the number of ringleaders, namely nine. I informed him
    in detail about the interrogation and he signed the poster.

    “If this had not met with his approval and had he wished to
    revise it, as for instance, making it less severe, which he had
    the right to do, then I should have had to abide by his
    decision.”

Now do you deny these statements?

VON NEURATH: Yes; I do not know how many times I have got to tell you
that I was not in Prague at all.

And besides I do not know under what sort of pressure Frank might have
made these statements. It does not give the date, but you just said that
he made this statement on 7 April, and therefore a few days before his
execution.

MR. COUNSELLOR RAGINSKY: I should like the Tribunal to note that the
defendant is deliberately distorting the facts. I repeated several times
that these statements were made by Frank on 7 March and not on 7 April,
or 2 days before the execution, as you are telling me now.

The document is before you and you can look at it yourself and see the
date.

VON NEURATH: All right, then 7 March instead of 7 April. I think I said
7 April because I did not see the date at the top. But as I have said—I
think I have already told you three times—I could not have known
anything at all about it because I was not there.

MR. COUNSELLOR RAGINSKY: Well. But you are making too many mistakes.
Yesterday when giving testimony you were not very clear as to the number
of students, either.

VON NEURATH: I cannot remember what I said yesterday, but I could hardly
have made so many mistakes; I do not know if there were one or two less.

MR. COUNSELLOR RAGINSKY: I would like to remind you. Yesterday, in reply
to a question by Sir David, who submitted to you Document 3858-PS, from
which it was evident that after the closing of the higher institutions
of learning, 18,000 students found themselves out of school...

THE PRESIDENT: Is it necessary to go over Sir David’s cross-examination
again? Surely we have said that we do not want to go over the same
subject twice.

MR. COUNSELLOR RAGINSKY: Mr. President, I do not want to go back to the
very same thing, and I do not want to add anything to the questions put
by Sir David who has carried out a very detailed interrogation. I wanted
only to establish the truth. When the defendant stated yesterday that in
the document which was submitted by Sir David there was a mistake—that
in Prague there existed only two institutions of higher learning and
that 12,000 students could not have been arrested, this was not correct.
The question was not merely about the closing of two Prague
universities, but, on the basis of the order of 17 November 1939, there
were closed the Czech university in Prague, the Czech university in
Brünn, the Czech Higher Technical School in Brünn, the Czech Higher
Technical School in Prague...

THE PRESIDENT: We heard all this yesterday, and we do not want to hear
it again. We heard all about the closing of the university in Prague.

MR. COUNSELLOR RAGINSKY: Very well, Mr. President. I just wanted to
state that not 2 universities were closed, but 10 institutions of higher
learning.

I have just a few questions left which I should like to put to the
defendant.

[_Turning to the defendant._] You received many awards from Hitler, as
is evident from the documents, and as you yourself stated. For instance,
on 22 September 1940 you received the Iron Cross for Military Service.
For what kind of services did you receive this award from Hitler?

THE PRESIDENT: Surely we went into this yesterday, did we not, in Sir
David’s cross-examination, or in the examination-in-chief, I forget
which? I think it was the examination-in-chief—all these decorations
which were given the defendant.

MR. COUNSELLOR RAGINSKY: Mr. President, I do not want to revert to these
orders, but I should like to ask the defendant, for what special
services he received the Iron Cross from Hitler in 1942.

THE PRESIDENT: All right, ask him that.

VON NEURATH: Unfortunately, I cannot tell you. I cannot tell you what
sort of merits I am supposed to have displayed. The award of this order
of merit was made generally to all higher officials who were in service
at the time.

MR. COUNSELLOR RAGINSKY: Very well, I am not going to insist on your
reply. I just wanted to state here that you received this award in 1940
after the mass terror was applied against the Czechoslovak population.

VON NEURATH: I do not know that I am supposed to have carried out a mass
terror.

MR. COUNSELLOR RAGINSKY: Very well, if you do not understand, we are not
going to argue about this question.

In February 1943, in connection with your jubilee, various articles
about you were published in many newspapers. I am not going to submit
all these papers to the Tribunal or quote these articles, but I should
like to read just two excerpts from the newspaper _Fränkischer Kurier_
of 2 February 1943. We shall submit to you one of the copies of this so
that you can follow me as I read this document into the record.

This newspaper is being submitted to the Tribunal under Document Number
USSR-495.

In connection with your anniversary, it was stated:

    “The most outstanding events in the field of foreign policy
    after Hitler’s coming to power, in which Freiherr von Neurath
    played a most important role as Reich Foreign Minister and with
    which his name will always be connected, are: Germany’s leaving
    the Geneva Disarmament Conference...the reuniting of the Saar to
    Germany...and the denouncing of the Locarno Pact.”

And further on:

    “Reich Protector Freiherr von Neurath was repeatedly decorated
    by the Führer for outstanding services in the interest of the
    people and the Reich. He was decorated with the Golden Party
    Badge of Honor, received the rank of SS Gruppenführer, was a
    knight of the Order of the Eagle, and received the Gold Badge of
    Honor for Faithful Service for his 40 years of diplomatic
    service.

    “In appreciation of his outstanding services in the field of
    military efforts in the post of Reich Protector for Bohemia and
    Moravia, the Führer decorated him with the Military Cross, First
    Class.”

Are the facts correctly stated in this article?

VON NEURATH: If I had to investigate the correctness of every article
written by some journalist or other, I would have had a lot to do. These
statements are the opinion of a journalist and nothing more.

THE PRESIDENT: That was not the question. The question was whether they
were correctly stated, as a matter of fact. You can answer that.

VON NEURATH: Yes—no.

THE PRESIDENT: Which do you mean, “yes” or “no”?

VON NEURATH: The decorations are correctly stated. Apart from that it is
not correct.

MR. COUNSELLOR RAGINSKY: I have no further questions to put.

THE PRESIDENT: Dr. Lüdinghausen, do you wish to re-examine?

DR. VON LÜDINGHAUSEN: Mr. President, yesterday afternoon I had the
feeling and impression, probably not without reason, that Herr Von
Neurath was visibly tired and strained after the previous examination
and that he was no longer in a position to do complete justice to the
questions which were put to him. This, after all, is not surprising, if
one considers that Herr Von Neurath is in his seventy-fourth year and
besides that he is also suffering from a fairly serious heart disease. I
feel obliged, therefore, to refer back to various points of the
cross-examination of yesterday and put a few questions to him.

[_Turning to the defendant._] Herr Von Neurath, you stated yesterday
that because of the excesses of the SA and other radical groups in 1933
and later, you frequently protested to Hitler. What was the reason why
you remonstrated with Hitler directly and did not raise your objections
at the Cabinet meetings which were still taking place at that time?

VON NEURATH: I had already learned from personal experience that Hitler
could not stand contradiction of any kind and that he was not amenable
to any kind of petition if it was made before a fairly large group,
because then he would always develop the complex that he was facing some
sort of opposition against which he had to defend himself. It was
different when one confronted him alone. Then, at least during the
earlier years, he was accessible, thoroughly amenable to reasonable
arguments, and much could be achieved in the way of moderating or
weakening radical measures.

Moreover, I should like to mention again that just after the excesses
mentioned in Mr. Geist’s affidavit there was a meeting of the Cabinet,
during which strong protests were raised against the repetition of such
occurrences by various ministers including non-Nazi ministers. At that
time Hitler thoroughly agreed with these objections, and declared that
such excesses would not be allowed to recur. Shortly afterward he also
made a speech in which he publicly expressed an assurance to this
effect. From then until June 1934 no more excesses took place.

DR. VON LÜDINGHAUSEN: But in April 1933 there was the well-known
anti-Jewish boycott, which lasted 24 hours, if I am not mistaken?

VON NEURATH: Yes, that was one of Herr Goebbels’ provocations. But
actually there were no excesses and acts of violence whatsoever on that
occasion. It was confined merely to boycotting.

Moreover, the fact that no further disturbances arose in that case was
the result of a joint intercession by Herr Von Papen and myself with
Hitler and especially with Hindenburg. A perfectly correct description
of this episode is to be found, as I recall, in an article of _Time_ for
April 1933, which is also contained in my document book.

DR. VON LÜDINGHAUSEN: Mr. President, it was submitted in my document
book, Document Number Neurath-9.

[_Turning to the defendant._] In connection with the events that
occurred at that time, arrests, and so forth, Sir David yesterday
referred particularly to the arrest of the well-known author Ossietzski.
Do you recall that this Ossietzski had already been sentenced to a
fairly long prison term by a German court even before the seizure of
power?

VON NEURATH: Yes, I remembered that afterward. I remember which
government—Herr Ossietzski had been sentenced by a Reich that even
before the seizure of power—I do not know under court to a fairly long
term in the penitentiary for high treason, but he had not yet served it,
and consequently was arrested again.

DR. VON LÜDINGHAUSEN: Now I should like to ask you another question with
reference to the report submitted by the Prosecution yesterday. It is
the letter of Ministerial Director Köpke on 31 May 1934. That is
Document D-868. In this report, from the information noted down by Herr
Köpke, do you see any proof that the Foreign Office was drawn into the
subversive activities of the Austrian Nazis?

VON NEURATH: No, not at all. This has to do with a report which
Ministerial Director Köpke made to me about a visit by Herr Wächter,
whom he described as an Austrian with a sense of responsibility. This
Herr Wächter had tried to establish a connection with the Foreign Office
and with Hitler in order to draw attention to the dangers arising from
the growing radicalism of the Austrian Nazis. The head of the Political
Department, Herr Köpke, identifies himself with Wächter regarding these
apprehensions and agreed to make an oral report to that effect.

I do not think that anyone can doubt that my attitude was not quite the
same as that of Herr Köpke and I passed this report on to Hitler in
order to draw his attention to the matter.

DR. VON LÜDINGHAUSEN: The Prosecution—or rather, Sir David—referred
yesterday to reports which deal with the treatment of the Czech problem
by you and Frank. This is Document 3859-PS, a letter which you sent to
the Chief of the Reich Chancellery, Lammers, on 31 August 1940, for the
preparation of your oral report to Hitler. Were these reports, that is,
the one drafted by Frank, identical with the memorandum mentioned in the
Friderici document of 15 October?

VON NEURATH: Yes, apparently these are the same reports.

DR. VON LÜDINGHAUSEN: Now, during your examination you spoke about the
Friderici document, which you said was based on plans of the SS, various
Party circles, and the Gauleiter of the Lower Danube district, regarding
a deportation of Czechs to the Eastern Territories. You went on to say
that in order to stop these plans, which you yourself described as
nonsensical, you had Frank prepare this memorandum in which a less
radical solution was recommended, which later had also been approved to
a certain extent by Hitler; and that in reality nothing happened, which
was what you intended, and that the idea of incorporation had
practically been buried. Is that right?

VON NEURATH: Yes, that is true. This entire affair and the origin of
these memoranda are extremely difficult to explain. It can be understood
only from the entire domestic political development. The efforts of the
Gauleiter of the surrounding districts to divide up the Protectorate had
proceeded rather far. They had all submitted memoranda and Herr Himmler
backed them up. All these memoranda envisaged a radical solution of
these problems; that meant there was reason to fear that Hitler would
comply with the wishes of these Gauleiter. In order to stop this I had
to make several proposals which I myself had said were impracticable,
and I identified myself with them primarily so as to declare them absurd
later on.

That is the only explanation of the origin of these memoranda. I did not
draft the memoranda myself, but that was done in my office, in
accordance, to be sure, with instructions given by me.

This was, however, and I should like to emphasize this expressly, a
purely tactical maneuver to get at Hitler, because I was afraid that he
would follow the radical suggestions made by Himmler and his associates.
I did actually manage to get Hitler to issue a strict order, which is
what I had requested, to the effect that all these plans were no longer
to be discussed, but that only the so-called assimilation plan was left,
which could be carried out only over a period of years; and, as a matter
of fact, nothing more happened, and that was exactly what I was aiming
at.

DR. VON LÜDINGHAUSEN: A decree was submitted by the Prosecution
yesterday, which was issued to the German authorities in the
Protectorate, regarding the treatment to be given of the German-Czech
problem publicly. That is Document 3862-PS, dated 27 June 1941. Is that
in any way connected with these memoranda or the discussion you had with
Hitler about it?

VON NEURATH: Yes, it is most closely interconnected, and I think I said
so yesterday. In the following year the same agitation started all over
again for this Germanization and partitioning of the Protectorate, and I
opposed it, and, once the question was decided, I prohibited it from
being reopened.

DR. VON LÜDINGHAUSEN: A document was submitted yesterday, USSR-487, the
Chief of the Security Police, addressed to State Secretary Frank, dated
21 July 1943, that is to say, after you had resigned. From that document
the Prosecution are attempting to draw the conclusion that, in
accordance with a decree dated 5 May 1939, you appointed the leader of
the SA and Security Police in Prague as your political expert.

In what way did the latter act in this capacity? Did he act at all?

VON NEURATH: No, he did not; that is just it. It is clearly apparent
from this letter of reminder, dated 21 July 1943, that he never became
at all active in this respect.

MR. COUNSELLOR RAGINSKY: Mr. President, I should like to state here that
the question was incorrectly put. This document is not dated in the year
1943 or 1942, but it is dated 21 July 1939.

VON NEURATH: May I remark here that it makes no difference, as nothing
had happened. I did not appoint any political expert.

DR. VON LÜDINGHAUSEN: What measures followed Documents 3851-PS and
3858-PS, which were introduced yesterday by the Prosecution, and which
were proposals submitted by various departments and department heads of
your administration regarding the utilization for labor of the students
who became unemployed through the closing down of the Czech
universities?

VON NEURATH: I have already told you yesterday that this apparently
concerned a proposal from an adviser which never even reached me, but
was rejected by my State Secretary before it got to me. Just how I could
possibly be held responsible for the contents of a draft submitted by an
adviser, I cannot understand.

DR. VON LÜDINGHAUSEN: Now I should like to put one more question to you
regarding the German-Austrian agreement of July 1936. As is mentioned in
a report by Dr. Rainer to Bürckel which the Prosecution have already
submitted—I refer to Document 812-PS—is it correct that Hitler,
immediately after the signing of that agreement, had personally declared
to Dr. Rainer and the Austrian Nazi Leader Globocznik that this
agreement of 11 July 1936 was signed by him in all honesty and
sincerity, and that the Austrian National Socialists, too, should under
all circumstances adhere strictly to this agreement, and that they were
to let themselves be guided by him in their conduct toward the Austrian
Government?

VON NEURATH: Yes, that is correct. As I think I said to you yesterday, I
believe I can also remember that Rainer actually confirmed it when he
was here on the witness stand.

THE PRESIDENT: Dr. Von Lüdinghausen.

DR. VON LÜDINGHAUSEN: I would like to put a last question...

THE PRESIDENT: He answered these questions perfectly clearly, according
to his view, yesterday.

DR. VON LÜDINGHAUSEN: Yes, I am all through now. I should like to ask
him only one more question in conclusion of the entire examination of my
client.

[_Turning to the defendant._] The Prosecution and also Sir David brought
the following charge against you yesterday: They charged that although
by your own admission you were not in agreement with the Nazi regime and
its methods, and although you considered many of the things that
occurred reprehensible and immoral and abhorred them, you did not
resign, but remained in the Government. Will you please explain that to
us once more?

VON NEURATH: I have already mentioned in the beginning that I had given
my promise to Hindenburg to enter the Government and to remain there as
long as it was at all possible for me to follow a course unfavorable to
any use of violence and to protect Germany from warlike entanglements.
That was my task and nothing else. But it was not only this promise I
had given to Hindenburg, but also my sense of duty, and my feeling of
responsibility toward the German people, to protect them from warlike
entanglements as long as it was at all possible, which bound me to this
office. Beside these considerations all my personal wishes, which were
quite different, had to take second place.

Unfortunately, my power and influence as Foreign Minister did not reach
far enough to enable me to prevent pernicious and immoral actions in
other spheres, as for instance, that of domestic policy, although I did
try in many cases, not least of all in the Jewish question itself.

However, I considered that my highest duty was to carry out the work
assigned to me and not try to escape it, even if in another sphere where
I had no influence, things occurred which hurt me and my opinions very
deeply.

There may be many people who have different ideas and a different
attitude than I. I experienced similar attacks when I placed myself at
the disposal of a Social Democrat Cabinet in the year 1919 after the
first revolution; at that time, too, the strongest attacks and the most
serious accusations were made against me.

DR. VON LÜDINGHAUSEN: Yet you yourself have struggled hard with your
conscience, you have often told me.

VON NEURATH: Yes, of course I have. It is not easy to belong to a
government with whose tendencies you do not agree, and for which one is
to be made responsible later on.

DR. VON LÜDINGHAUSEN: Mr. President, this completes my examination. I
would suggest we adjourn now and then I might be permitted to begin the
examination of my witnesses.

THE PRESIDENT: The Tribunal will now adjourn.

                        [_A recess was taken._]

THE PRESIDENT: Dr. Horn, you have some questions to ask?

DR. MARTIN HORN (Counsel for Defendant Von Ribbentrop): Mr. President, I
ask permission for my client to be absent from the session this
afternoon and tomorrow, because I have important questions to discuss
with him.

THE PRESIDENT: The Defendant Von Ribbentrop?

DR. HORN: Von Ribbentrop, yes.

THE PRESIDENT: Yes, certainly.

DR. HORN: Thank you.

DR. ALFRED THOMA (Counsel for Defendant Rosenberg): Mr. President,
yesterday afternoon General Raginsky asked whether Rosenberg interfered
in Neurath’s foreign policy. The interpreter just told me that she
translated it wrongly. She translated it “whether Ribbentrop interfered
in Neurath’s policy.” This question, therefore, has not been answered
yet; consequently, I ask permission to ask Baron von Neurath whether
Rosenberg interfered in Neurath’s foreign policy.

VON NEURATH: No, in no way. I never talked to Rosenberg about matters of
foreign policy.

DR. THOMA: Then I ask that the transcript be corrected accordingly, so
it should not read “whether Ribbentrop interfered in Neurath’s
policies,” but “whether Rosenberg interfered in Neurath’s policies.”

THE PRESIDENT: The record will be corrected.

THE TRIBUNAL (Mr. Francis Biddle, Member for the United States): I want
to ask you just a very few questions. You will remember that the
Baroness von Ritter said that after the 5th of November 1937 you
recognized—I want to read it exactly:

    “When Herr Von Neurath had to recognize for the first time from
    Hitler’s statement on 5 November 1937 that the latter wanted to
    achieve his political aims by using force toward neighboring
    states, this shook him so severely mentally that he suffered
    severe heart attacks.”

That is a correct description, is it not, of what you then recognized?

[_The defendant nodded assent._]

THE TRIBUNAL (Mr. Biddle): Now, you stated that you spoke immediately
after that meeting to General Beck and General Von Fritsch. Do you
remember?

VON NEURATH: Yes.

THE TRIBUNAL (Mr. Biddle): And I think you said to Sir David that you
did not speak to the Defendant Göring. What I am asking you now is
whether you spoke of what Hitler had said to anyone else during the next
2 or 3 months. Did you speak to anyone in the Foreign Office?

VON NEURATH: I spoke to my State Secretary.

THE TRIBUNAL (Mr. Biddle): And with whom else from the Foreign Office?

VON NEURATH: No one, for Hitler had laid down the condition that silence
should be preserved about all these meetings; and for that reason I did
not speak with my officials about them. They knew nothing. They had
learned nothing from the military men, either.

THE TRIBUNAL (Mr. Biddle): Did you speak to the Defendant Von Papen when
you saw him next?

VON NEURATH: No. I believe I did not see him at all at that time.

THE TRIBUNAL (Mr. Biddle): And did you discuss it with anybody else
before your resignation?

VON NEURATH: No.

THE TRIBUNAL (Mr. Biddle): Now, I have only one other question. You
recognized, did you not, that Himmler would use methods which you would
not approve of; is that right?

VON NEURATH: Yes, but only gradually; that could not have been foreseen
from the beginning.

THE TRIBUNAL (Mr. Biddle): That is just what I wanted to know. When did
you first realize that? When did you first begin, just as well as you
could tell? About when did you realize what sort of man Himmler was?

VON NEURATH: That was very difficult to recognize, because Himmler had
two faces; he was a perfect Janus; one could not see immediately what
his real thoughts were at all.

THE TRIBUNAL (Mr. Biddle): I am not asking you what he was like. If you
would just try to remember, you certainly realized that at some time.
Did you know it in 1937? You knew it in 1937 or 1938? Certainly in 1938,
did you not?

VON NEURATH: Probably in 1938, but it is hard for me to give a date at
the moment.

THE TRIBUNAL (Mr. Biddle): I do not want a specific date. My point is
that you knew it before you went to the Protectorate; you knew what
Himmler was before you went to the Protectorate, of course? There is no
question about that, is there?

VON NEURATH: Yes, certainly.

THE TRIBUNAL (Mr. Biddle): That is all.

THE TRIBUNAL (Major General I. T. Nikitchenko, Member for the U.S.S.R.):
Did you ever express yourself openly against the policy of the Hitlerite
Government?

VON NEURATH: I am sorry, but the translation was not good.

THE TRIBUNAL (Gen. Nikitchenko): In your explanations made before the
Tribunal you stated that you were not in agreement with the policy of
Hitler’s Government, either on individual questions or taken as a whole,
as well. Is that true?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): Did you ever express yourself openly
with a statement of your disagreement with Hitler’s policy?

VON NEURATH: I did so more than once.

THE TRIBUNAL (Gen. Nikitchenko): In what manner was it, then? I am
asking you about your public statements, either in the press or while
addressing any meeting?

VON NEURATH: No. It was no longer possible either to have a voice in the
press, or to hold a meeting. It was quite out of the question. I could
only speak to Hitler personally or, at the beginning, in the Cabinet in
protest against this policy. There was no freedom of the press any
longer, any more than in Russia. In the same way no meeting was
possible. Consequently...

THE TRIBUNAL (Gen. Nikitchenko): I am not asking you about Russia; I am
asking you about your expressing your views publicly. In other words,
you never expressed them.

VON NEURATH: No.

THE TRIBUNAL (Gen. Nikitchenko): And in that way nobody in Germany could
know, or did know, about the fact that you were not in agreement with
the policy on the part of Hitler’s Government?

VON NEURATH: I always expressed myself quite unmistakably about it, but
not in articles, nor in meetings either; but otherwise I always
expressed myself clearly about it.

THE TRIBUNAL (Gen. Nikitchenko): Yes, but only in your _tête-à-tête_
with Hitler, only personally to Hitler. You said so, did you not?

VON NEURATH: No; I tell you I said that to everyone who would listen,
but I could not do so in public meetings, in speeches, or in articles.

THE TRIBUNAL (Gen. Nikitchenko): And you remained a member of the
Government in spite of the fact that you were not in agreement with the
Government’s policy; is that so?

VON NEURATH: Yes, for that very reason.

THE TRIBUNAL (Gen. Nikitchenko): In order to counteract his policy?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): Do you know the results of Such
counteracting?

VON NEURATH: I did not understand that.

THE TRIBUNAL (Gen. Nikitchenko): What were the results of counteracting
the policy of Hitler’s Government?

VON NEURATH: Well, I am not in a position to give the details on that.

THE TRIBUNAL (Gen. Nikitchenko): In particular, as to the question of
aggression, were you against the joining of Germany and Austria?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): The German Government, in spite of
this, joined Austria to Germany; is that so?

VON NEURATH: I believe it has been clearly expressed here that at the
last moment Hitler did that.

THE TRIBUNAL (Gen. Nikitchenko): You were against the seizing of
Czechoslovakia?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): And the German Government, in spite of
this, seized Czechoslovakia?

VON NEURATH: I was no longer a member of the Government at that time.

THE TRIBUNAL (Gen. Nikitchenko): But as a statesman whose opinion should
have been considered, you, of course, expressed your opinion against it,
did you not?

VON NEURATH: Always.

THE TRIBUNAL (Gen. Nikitchenko): You were against the attack on Poland?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): And in spite of that Germany did attack
Poland.

VON NEURATH: I repeat, I was no longer a member of the Government. I
learned of it only at the last moment.

THE TRIBUNAL (Gen. Nikitchenko): You were against the attack on the
U.S.S.R.?

VON NEURATH: Yes, more so indeed; I always wanted the exact opposite. I
wanted co-operation with the Soviet Union, I said that as early as 19...

THE TRIBUNAL (Gen. Nikitchenko): And still Germany attacked the Soviet
Union?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): Judging from your explanations, Hitler
must have known about your political opposition and your disagreement
with his policy; is it correct?

VON NEURATH: He knew that very well, for I resigned in 1938 for that
reason.

THE TRIBUNAL (Gen. Nikitchenko): Yes. And you know how Hitler made short
work of his political opponents?

VON NEURATH: In the Reich, yes.

THE TRIBUNAL (Gen. Nikitchenko): And so far as you were concerned, in
spite of the fact that you sided with the opposition, nothing happened;
that is true, is it not?

VON NEURATH: I did not understand.

THE TRIBUNAL (Gen. Nikitchenko): So far as you were concerned, in spite
of the fact that you declared yourself for the opposition, nothing of
the kind happened?

VON NEURATH: No, but I always expected it.

THE TRIBUNAL (Gen. Nikitchenko): And could you not tell us whether Sir
Nevile Henderson, in his book, the _Failure of a Mission_, expressed the
facts concerning you personally correctly or not? Do you consider that
Sir Nevile Henderson expressed the facts correctly concerning you
personally? Does he express them correctly?

VON NEURATH: I must admit frankly that I read this book by Sir Nevile
Henderson only once, 3 or 4 years ago. I cannot remember now what he
said about me. I heard excerpts from it here once or twice but I cannot
say what he writes about me.

THE TRIBUNAL (Gen. Nikitchenko): But I assume that you are familiar
enough with the excerpts presented by your defense counsel in his
document book?

VON NEURATH: Yes.

THE TRIBUNAL (Gen. Nikitchenko): Now, for instance, that which is
expressed in his excerpts so far as you are concerned, is it correct or
not?

VON NEURATH: I assume so, yes.

THE TRIBUNAL (Gen. Nikitchenko): That is to say, it is correct. And is
it quite correct what he writes in reference to your membership in the
Party? He writes that “Baron von Neurath himself remained in the regime
of Hindenburg, and he was not a member of the Nazi Party.”

VON NEURATH: Yes, I believe I have said so repeatedly here in the last
few days.

THE TRIBUNAL (Gen. Nikitchenko): And further on he informs us that “he
(Neurath) became a member of the Party later.”

VON NEURATH: I have already explained how that happened. In 1937 I
received a Golden Party Badge without my...

THE TRIBUNAL (Gen. Nikitchenko): Yes, we have heard that before, but is
it true or not that you became a member of the Nazi Party later, as Sir
Nevile Henderson states?

VON NEURATH: No, I...

THE TRIBUNAL (Gen. Nikitchenko): So this particular part is not correct,
is it?

VON NEURATH: I received the Golden Party Badge with Hitler’s statement
that this involved no obligations towards the Party.

THE TRIBUNAL (Gen. Nikitchenko): We have heard this already. That means
that in Sir Nevile Henderson’s statements not everything is true as far
as your person is concerned?

VON NEURATH: I do not know. With the best intentions I cannot remember
what Sir Nevile Henderson wrote about me.

THE TRIBUNAL (Gen. Nikitchenko): And the last question I have, which is
in regard to your memorandum: I did not quite understand the
explanations which were given by you to Sir David and later to your
defense counsel. Now, in forwarding Frank’s memorandum, in the letter
addressed to Lammers, you wrote that you considered this memorandum
absolutely correct. Is that true?

VON NEURATH: Yes, that is true. I should also like to tell you the
reasons. This memorandum...

THE TRIBUNAL (Gen. Nikitchenko): You already explained the reasons
before. I just wanted to establish the fact that you really wrote this.

VON NEURATH: Up to now I have not told the reason why I wrote this to
Lammers. The reason why I wrote to Lammers to this effect was that he
was the one who submitted this memorandum to the Führer. So I had to
write to the same effect.

THE PRESIDENT: There are two subjects I want to ask you about and the
first relates to the letter that you wrote on the 31st of August 1940.
That is the letter which General Nikitchenko has just referred to; you
remember that?

VON NEURATH: Yes, indeed.

THE PRESIDENT: And you remember that you said in that letter that you
fully agreed with the memorandum which your Secretary of State Frank had
drawn up independently of you. He said that “Germanization provides for
the changing of the nationality of racially suitable Czechs; and
secondly, the expulsion of racially unassimilable Czechs and of the
intelligentsia who are enemies of the Reich or special treatment for
these and all destructive elements.” My question is: What did you
understand by “special treatment”?

VON NEURATH: Well, as far as I read this extract at all at the time, I
had in no way ever thought of the term “special treatment” as it has
become known here during the Trial. I was certainly not at all in
agreement with this attitude of Frank as represented in the report, and
I only had the intention of frustrating this whole affair in order to
sidetrack it. The content of these reports was only intended to present
this to Hitler in Hitler’s language, or in the language of Himmler and
others, in order to dissuade him from it later on.

THE PRESIDENT: Was it not misleading to write to Herr Lammers with the
view that it should be put forward to Hitler, saying that you fully
agreed with the memorandum with which you did not agree?

VON NEURATH: Mr. President, as things were, I could not write to
Lammers. I did not intend to carry out anything which is written in
there, but since Lammers was presenting this to Hitler, I first had to
tell him I agreed with it. Afterward I reported to Hitler and gave him
an explanation in a personal conference during the meeting with Frank
and Gürtner which has been mentioned here.

THE PRESIDENT: Then your answer is that you do not know what was meant
by “special treatment”?

VON NEURATH: No; in any case I did not know at the time.

THE PRESIDENT: Now, there is one other question that I should like to
put to you. You remember when you were called on the 11th of March 1938,
at the time of the Anschluss with Austria, and you wrote the letter of
the 12th of March 1938, in answer to the memorandum which you received
from the British Government through Sir Nevile Henderson. You knew Sir
Nevile Henderson quite well, did you not?

VON NEURATH: Yes.

THE PRESIDENT: And in that letter you said this:

    “It is untrue that the Reich used forceful pressure to bring
    about this development; especially the assertion, which was
    spread later by the former Chancellor, that the German
    Government had presented the Federal President with a
    conditional ultimatum, is pure invention. According to the
    ultimatum, he had to appoint a proposed candidate as Chancellor
    and form a Cabinet conforming to the proposals of the German
    Government, otherwise the invasion of Austria by German troops
    was held in prospect.”

And then you go on to say what you allege was the truth of the matter.
You know now, do you not, that your statements in that letter were
entirely untrue?

VON NEURATH: That did not come through.

THE PRESIDENT: Have you heard any part of the question that I was
putting to you?

VON NEURATH: Unfortunately not.

THE PRESIDENT: It is a pity that you did not say so earlier. Do you
remember the 11th of March 1938 and being called in to represent the
Foreign Office, and you have told me just now that you knew Sir Nevile
Henderson quite well?

VON NEURATH: Yes.

THE PRESIDENT: And you remember the letter which you wrote on the 12th
of March 1938?

VON NEURATH: Yes.

THE PRESIDENT: And you admitted to Sir David Maxwell-Fyfe that the
statements in that letter were untrue?

VON NEURATH: Untrue, yes—not entirely. They are presented incorrectly.

THE PRESIDENT: What steps did you take to find out whether or not they
were true?

VON NEURATH: I did not learn of the incorrectness of this presentation
until much later.

THE PRESIDENT: That is not an answer to my question. I said, “What steps
did you take to find out whether the statement was correct?”

VON NEURATH: The statement which Hitler gave me I first simply presumed
to be true. I certainly could not check up on it in any way.

THE PRESIDENT: Why should you assume it to be true when it was in
contradiction of what the British Government had stated?

VON NEURATH: I had no other knowledge of the events which had occurred
and therefore could only say what I knew.

THE PRESIDENT: You had the letter, the protest from the British
Government, had you not?

VON NEURATH: Yes.

THE PRESIDENT: You knew Sir Nevile Henderson perfectly well?

VON NEURATH: Yes.

THE PRESIDENT: And you then wrote this letter contradicting the
statements which had been made on behalf of the British Government; that
is right, is it not?

VON NEURATH: Yes.

THE PRESIDENT: And you took no steps to check the facts which had been
stated to you by Hitler? Will you answer that, please?

VON NEURATH: Yes. Your Lordship, how was I to do that? There was no one
else who knew about it. It was only what Hitler had commissioned me to
tell the Foreign Office. The draft of this note was drawn up by the
Foreign Office according to the information which I had received from
Hitler. I had no other chance to clear this up.

THE PRESIDENT: There were all the other persons who were concerned with
the matter whom you could have communicated with, but your statement is
that you did nothing?

VON NEURATH: I can only repeat that I had no opportunity to procure any
other information. No one knew about it except Hitler.

THE PRESIDENT: Are you telling the Tribunal that Göring did not know
about it?

VON NEURATH: Perhaps Göring knew about it.

THE PRESIDENT: That is all. The defendant can return to the dock.

DR. VON LÜDINGHAUSEN: Mr. President, I ask permission to call the first
witness, the former Ministerial Director, and head of the political
section in the Foreign Ministry, Dr. Köpke.

[_The witness Köpke took the stand._]

THE PRESIDENT: Will you state your full name, please?

GERHARD KÖPKE (Witness): Gerhard Köpke.

THE PRESIDENT: Will you repeat the oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. VON LÜDINGHAUSEN: Dr. Köpke, how long have you known Herr Von
Neurath?

KÖPKE: I have known Herr Von Neurath for over 40 years. His career is
well known. Therefore I can limit myself to stating that we worked
together as vice consuls in London, as legation counsellors in the
Foreign Office and later, after Herr Von Neurath became Minister in
1932, until my resignation in 1935. In the meantime Von Neurath was in
Copenhagen, Rome, London, and for some time at his home, and finally in
Prague. We met only occasionally when I was in Berlin, and we kept up a
comparatively lively correspondence with each other as old friends. I
myself was employed in the Foreign Office during the entire period. From
1921 on I was director of the Legal Department, and from 1923 I was
director of the political, so-called Western Department, which I
directed until I left the service. I voluntarily tendered my resignation
at the end of 1935.

DR. VON LÜDINGHAUSEN: What do you know about the attitude, the
fundamental attitude of Herr Von Neurath on domestic and foreign policy,
but only on broad lines?

KÖPKE: In domestic politics, Herr Von Neurath stood close to the
conservative circles but he was never a member of the Conservative
Party. From this basic conservative attitude and also because of his
outstanding character traits of loyalty to duty and reliability, he had
the confidence of Reich President Von Hindenburg, and retained it
without interruption until the latter’s death. Herr Von Hindenburg
esteemed Von Neurath as a prudent, moderate, reliable diplomat. Men of
other party inclinations also had confidence in Von Neurath. I shall
mention only the deceased Reich President, Ebert, who recalled Neurath
to office during his term.

DR. VON LÜDINGHAUSEN: What do you know about Von Neurath’s appointment
as Reich Foreign Minister in the summer of 1932?

KÖPKE: The appointment of Herr Von Neurath as Reich Foreign Minister was
based on a personal wish of President Von Hindenburg. Neurath did not
become Foreign Minister within the Von Papen Cabinet, but became Foreign
Minister as the special confidant of President Von Hindenburg.

DR. VON LÜDINGHAUSEN: Then how did it happen that Von Neurath remained
Foreign Minister in the new Hitler Government also?

KÖPKE: Von Neurath did not participate so far as I know in the
negotiations with Hitler about the assumption of power. If I can rely
only on my memory, he was sick abed with a heart disease during the
decisive days, but he remained Foreign Minister, again at the special
wish of Von Hindenburg.

DR. VON LÜDINGHAUSEN: Can you tell us anything about the attitude, the
relationship of Neurath to Hitler?

KÖPKE: I should like to remark by way of introduction that I cannot
testify on this subject from my own immediate observation. I was never
present at conferences which Herr Von Neurath held with Hitler. I myself
never had any official conversation with Hitler whatsoever. But,
according to Neurath’s own description, and according to the information
which I received from other important personalities in the course of
time, I had the impression that, especially in the first years, Hitler
treated Herr Von Neurath carefully and politely. To what extent this was
out of respect for the Reich President, whose regard for Von Neurath
was, of course, known to Hitler, I cannot say. In any case, Neurath was
never actually in the confidence of Hitler and was not in the small
circle close to Hitler, the powerful men of the Party. After the death
of President Von Hindenburg, Von Neurath remained because he had
promised the Reich President to do so. During the following period also,
Neurath repeatedly attempted to exercise his moderating and calming
influence on the Party. However, I know that as disappointments and
differences of opinion multiplied, Herr Von Neurath tried many times to
separate from Hitler. In this connection I can recall two occasions on
which he offered his resignation, and one of these appeals he showed me.
It was in writing and must have been dated from the beginning of the
year 1936. For at that time I had already resigned and visited Herr Von
Neurath as a friend in a purely private capacity.

DR. VON LÜDINGHAUSEN: Now can you also give us a brief picture of
Neurath’s attitude toward the National Socialist Party?

KÖPKE: At first Herr Von Neurath adopted an attitude of reserve toward
the Party and in particular its leading men. To my knowledge he was
personally acquainted with hardly any of these men, since, indeed, he
had lived most of the time abroad. Neurath was convinced that by reason
of his years of experience as an old diplomat and supported by his
confidential position with the Reich President, and the latter’s
moderating influence, he would succeed in working in accordance with his
policy, which was directed toward compromise and understanding.

Before me, and I believe also before his other colleagues, Neurath
frequently referred to experiences of this sort which he had had with
Fascism in Rome. He occasionally said that such revolutionary elements
should just be allowed to develop and that these hotheads would come to
their senses if they were given time and opportunity to gather
experience themselves in responsible positions.

By the way, Neurath also shared the opinions of State Secretary Von
Bülow in this respect. He retained this State Secretary of Reich
Chancellor Brüning, and also protected him until his death against
repeated attempts of the Party to get rid of him.

Moreover, I should like to mention a small detail which was very
valuable to us in the office at the time. When State Secretary Von
Bülow, who was generally popular, died suddenly, Neurath managed to get
Hitler to attend the funeral at the Kaiser Wilhelm Memorial Church. The
old officials of the Foreign Office saw in that a gratifying and
reassuring sign for the strong position of our Minister in relation to
the Party. This event, which in itself is perhaps unimportant, happened
exactly 10 years ago today.

DR. VON LÜDINGHAUSEN: As head of the Political Department of the Foreign
Office, you were one of Neurath’s foremost co-workers, and can surely
tell us what was the dominant tendency of Neurath’s foreign policy.

KÖPKE: Neurath’s political attitude on the whole was, in accordance with
his whole character and his years of experience in politics, inclined
toward compromise, waiting, negotiation. Measures backed up by
ultimatums and attempts at solution by violence did not suit Von
Neurath’s temperament. Neurath was neither a gambler nor a fighter by
nature.

DR. VON LÜDINGHAUSEN: Now I come to individual important foreign
political events which occurred during the period in which you worked
under Herr Von Neurath and were head of the political section.

In October 1933 Germany left the Disarmament Conference and the League
of Nations. Now, I should like to ask you whether this step of
Germany’s, leaving the Conference and the League of Nations, was based
on any aggressive or belligerent tendencies for the moment or for the
future?

KÖPKE: No. As far as the picture of the events mentioned by defendant’s
counsel was clear to us, the experts, it was as follows: No one of us in
the Foreign Office thought of warlike plans or preparations for war. It
was only done to proclaim as impressively as possible that Germany would
no longer allow herself to be considered a nation without the same
rights and obligations as other peoples.

In the same way the militarization of the Rhineland was not based on any
aggressive intention, either for the moment or for the future.

DR. VON LÜDINGHAUSEN: In the next few years, in 1935, Germany’s military
sovereignty was reintroduced, and a year later, the demilitarized
Rhineland zone was remilitarized. I should like to read you one sentence
from the affidavit of the former minister and interpreter Paul Schmidt
of the Foreign Office. He says the following with regard to the events
in the spring of 1935:

    “The conclusion of a pact of mutual assistance between France
    and Russia on 2 May 1935 followed the proclamation of the
    establishment of a German Air Force and the introduction of
    general compulsory military service in March 1935.”

Will you please give us a brief review of the historical development of
these matters which led to the reintroduction of military sovereignty in
1935 and to the remilitarization of the Rhineland in March 1936?

KÖPKE: I believe...

THE PRESIDENT: Dr. Von Lüdinghausen, we have had the historical
development of these matters over and over again. Surely we do not want
it from this witness.

DR. VON LÜDINGHAUSEN: Only very briefly, only the dates, in proper
order, Mr. President; no explanations about it. I should only like to
emphasize strongly once more how the individual events are connected
with each other.

THE PRESIDENT: The Tribunal have the dates in their minds. We really
have had these dates in our minds for some months.

DR. VON LÜDINGHAUSEN: Very well. If the Court believes that it does not
need to be informed about it, I must, of course, dispense with it. Then
I come to a last...

THE PRESIDENT: Well, you can put any question you really want to put
about it, but you said, “Will you give us the historical developments
from the 2d of May 1935?” We have heard that over and over again.

DR. VON LÜDINGHAUSEN: Yes, Mr. President. I was interested only in the
following: From this affidavit of Herr Schmidt which I have just quoted,
one could directly follow...

THE PRESIDENT: Ask the question, whatever you want to ask about this
affidavit.

DR. VON LÜDINGHAUSEN: Then I shall formulate the question as follows:

[_Turning to the witness._] I have just read this sentence by Herr
Schmidt, and I have also told you what can be read from it; namely, that
the conclusion of the Franco-Russian Pact of 2 May 1935 was the result
of the restoration of military sovereignty. Is that true or what was the
case?

KÖPKE: That question is difficult to answer if one merely considers
these two events in chronological order. The conclusion of the
Franco-Russian Pact was on 2 May 1935; the restoration of military
sovereignty was already in March 1935.

However, the negotiations for this treaty of assistance go back much
farther, and I should like to recall the fact that the critical stage,
into which these negotiations had entered before the restoration of
military sovereignty, is shown very clearly in the report of the French
Military Committee’s reporter in which the latter speaks quite openly of
a close entente between the two nations. That was on 23 November 1934.

DR. VON LÜDINGHAUSEN: Now I come to another question and should like to
ask you whether you know the opinions and attitude of Von Neurath
concerning the Austrian question, at least during your time?

KÖPKE: I have known Herr Von Neurath’s attitude toward the Austrian
question for a much longer time than the period when we worked together
during his term as Minister, for as a southern German he was always
particularly interested in the problem and I recall many conversations
which I had with him even when I was still a vice consul. His attitude
and intentions had always been to make the relations between Germany and
Austria closer in the economic sphere, chiefly in the interests of
Austria, and politically to guarantee a similar policy by treaties, but
otherwise not to encroach on Austria’s independence; that is what we in
the Foreign Office had already learned several years before he became
Minister, from our experience with the customs union, which at that time
was actually intended only in an economic sense. The fact that this
attempt was quite generally considered as a political union gave pause
for thought and should have warned everyone who had resolved to touch
this hot iron again. Therefore, Neurath, during his period of office,
whenever he discussed the problem with me and worked on it, thought
along just these lines.

I should like to add here that the critical time on the Austrian
question was probably after I left office. Moreover, even Hitler
originally shared Neurath’s moderate conception, as was shown in his
conversation with Mussolini in Venice in the summer of 1934. Especially
interesting, however, are the remarks which Hitler made on the Anschluss
problem to Sir John Simon during the negotiations in Berlin in March
1935. At that time Hitler expressed himself to the English statesman
about that as follows:

If the people in London knew Austria as well as he did, they would
believe his assurance that he could not want to increase our economic
troubles by adding another field of economic difficulties. Germany did
not want to interfere in this country at all. He was perfectly aware
that any interference in Austrian affairs, even if it meant carrying out
the wish of the Austrian people themselves for an Anschluss, could not
be legalized. That was Hitler’s opinion at that time.

Neurath also rejected all interference in Austrian internal affairs and
strongly condemned the attempts which could be noticed in Party circles
to give direct support to the Austrian National Socialists. During my
time Neurath did everything he could to keep the Foreign Office out of
the internal political struggle in Austria.

DR. VON LÜDINGHAUSEN: Still one more question. Up to the time of your
resignation at the beginning of 1936, was there ever any talk in the
Foreign Office of attacking Czechoslovakia or not observing existent
treaties with Czechoslovakia?

KÖPKE: Never, neither the one nor the other. Our economic and political
relations with Czechoslovakia were, as long as I was in office, very
good. We had no occasion whatsoever to change them, not even the
slightest.

DR. VON LÜDINGHAUSEN: And now my last question. Can you tell us anything
about Herr Von Neurath’s attitude toward the race question?

KÖPKE: On this question Neurath was completely opposed to the Party
attitude. In this connection I should like to recall an experience which
Neurath told me personally.

When the Jewish legislation was about to be proclaimed the Reich
Minister of Justice Gürtner came to him in great excitement and told Von
Neurath that he, Gürtner, had warned Hitler in vain against proclaiming
these quite impossible laws. He strongly urged Herr Von Neurath as
Foreign Minister to point out the enormous dangers which this madness
could set loose abroad. Neurath told me that he did this immediately,
but that all his efforts had been in vain.

Neurath’s personal attitude on the Jewish problem was thoroughly
conciliatory and reasonable, in keeping with his generally kind
personality and his religious attitude. Among many examples I should
like to refer here to only one, which is the following:

During the time when we were in London together, the Jewish doctor at
the Embassy was also one of the closest friends of the Neurath family.
When he had to leave London during the World War and was homeless and
without employment, Neurath immediately took active steps to help his
old friend.

As Reich Foreign Minister also, Von Neurath always helped non-Aryan
colleagues, although that brought him often under attack from the Party
circles and was not always easy.

DR. VON LÜDINGHAUSEN: Mr. President, I have no further questions to put
to the witness.

THE PRESIDENT: Does any other member of the defendants’ counsel want to
ask any question?

[_There was no response._]

Do the Prosecution wish to ask any questions?

SIR DAVID MAXWELL-FYFE: My Lord, the Tribunal will, of course, not
consider that the Prosecution are accepting every statement of the
witness; but I do not think that it would be a useful appropriation of
time to cross-examine him. Therefore, I shall ask no questions.

THE PRESIDENT: One moment, Sir David. Sir David, would it be convenient
to you and to the members of the defendants’ counsel to discuss the
questions of supplementary applications for witnesses and documents at 2
o’clock?

SIR DAVID MAXWELL-FYFE: Certainly, My Lord, it would be very convenient
to me. I do not think there are many serious matters about which there
will be serious dispute.

THE PRESIDENT: No, I thought there were not. Very well, we will do that
then.

The witness can retire.

Dr. Von Lüdinghausen, call your next witness and then we can have him
sworn before the adjournment.

DR. VON LÜDINGHAUSEN: May I ask that Dr. Dieckhoff be allowed to follow
Dr. Köpke?

[_The witness Dieckhoff took the stand._]

THE PRESIDENT: Will you state your full name please?

HANS HEINRICH DIECKHOFF (Witness): Hans Heinrich Dieckhoff.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: Now the Tribunal will adjourn.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

SIR DAVID MAXWELL-FYFE: If Your Lordship please, My Lord, the first
application is on behalf of the Defendant Von Neurath with regard to M.
François-Poncet. That has been dealt with; that is covered.

Then, My Lord, the next is an application from Dr. Marx on behalf of the
Defendant Streicher to put in an affidavit by the publisher, Herr
Gassner of _Der Stürmer_. My Lord, the publisher is intended to deal
with the question of the rise and the circulation of Der Stürmer during
the years 1933 to 1935. The Prosecution have already submitted to the
Tribunal that they did not think that that was relevant when an
application was made to call Herr Gassner as a witness. The Prosecution
still take the same position. My Lord, it is for an affidavit, and we
leave to the Tribunal as to whether they would like the affidavit, but
the Prosecution fail to see the relevance of that evidence.

THE PRESIDENT: Would Dr. Marx like to say something about that now?

DR. HANNS MARX (Counsel for Defendant Streicher): Mr. President, I have
just discussed this matter with Defendant Streicher; and he tells me
that the witness, Herr Gassner, whom I have proposed to call and from
whom an affidavit had been proposed, would only be in a position to
speak about the publication figures of Der Stürmer from the year 1941
onwards. That, of course, is of no interest whatever to the defense. I
shall, therefore, forego the affidavit and rely on what the witness
Hiemer has said in that respect. Therefore, it will not be necessary at
all to procure the affidavit.

SIR DAVID MAXWELL-FYFE: My Lord, the next application is by Dr.
Kranzbühler on behalf of the Defendant Dönitz for further consideration
and admission of the affidavit of the former fleet judge, Jäckel, by
reason of the course of the cross-examination.

My Lord, I think the most convenient course would be if the Prosecution
do not object to the application at this time but reserve the right,
when Dr. Kranzbühler makes the use that he desires of the affidavit, to
consider whether we shall then object.

THE PRESIDENT: This is really evidence in rebuttal, is it?

SIR DAVID MAXWELL-FYFE: Yes, in rebuttal of the points raised in the
cross-examination. It is very difficult to decide whether one should
make a final objection until one knows what use Dr. Kranzbühler is going
to make of it. I suggest that we do not object at this stage.

THE PRESIDENT: Well, these applications and the Tribunal’s orders
granting the witnesses are always subject to that provision.

SIR DAVID MAXWELL-FYFE: If Your Lordship please, then the Prosecution
makes no further objection.

My Lord, then there are two applications on behalf of the Defendant Von
Neurath, a request for minutes from the interrogatory of the...

THE PRESIDENT: They have both been withdrawn, have they not?

SIR DAVID MAXWELL-FYFE: Oh, they have? I was not certain.

My Lord, then Dr. Thoma makes application on behalf of the Defendant
Rosenberg for three matters: The exchange of letters between Dr. Ley and
the defendant; the entry of Dr. Strauber 27 May 1944; and third, a note
of the Ministerialrat, Dr. Beil.

My Lord, the Prosecution feel that these documents are cumulative, and
they leave it to the Tribunal with that suggestion—that the case is
already well covered. I do not know if Dr. Thoma wishes to say anything
further.

DR. ALFRED THOMA (Counsel for Defendant Rosenberg): Gentlemen of the
Tribunal, I should like to refer to it quite briefly, as apparently
there is an error in the matter of Dr. Beil. It is a question here of
the interrogatory. I have sent to Beil an interrogatory which has not
yet been returned. Otherwise, there is nothing that I know about this
matter; but I have made an application which has not been mentioned yet.
I applied for some of Rosenberg’s writings, _Tradition und Gegenwart_,
new speeches and translations, to be included in the document book, for
these deal with questions which were discussed on the occasion of Gau
educational meetings and discussions and which also deal with such
questions as the peaceful living together of the nations of Europe,
religious tolerance, his advocacy of an ideal humanity, and similar
writings. I request that these articles be admitted. Apart from that, I
have no further applications to make; and for the rest I leave the
decision, of course, to the Tribunal.

THE PRESIDENT: If I understand what you said aright, Dr. Thoma, you were
not referring to any of the applications which are before us. The
applications which are before us are an exchange of letters between Dr.
Ley and the defendant in the autumn of 1944; another is an entry which
Dr. Strauber made; and the third is a note of Dr. Beil; you have not
referred to them, have you?

DR. THOMA: Yes, that is right. I have to confess that these applications
are completely new to me. These applications must have been made by
Rosenberg on his own initiative, because I cannot find any trace of
them. Or perhaps an error was made in the memorandum to the Tribunal. I
do not know the applications.

THE PRESIDENT: Well, Dr. Thoma, the copies of the applications are
before us, and they appear to be signed both by the Defendant Rosenberg
and by yourself.

DR. THOMA: In that case, this must have happened months ago. I cannot
remember; this is from 3 June.

THE PRESIDENT: At any rate, you do not want them?

DR. THOMA: Application Number 3 is settled.

I have re-read the applications just now, and I do remember them. I ask
you to make a decision favorable to the defendant.

SIR DAVID MAXWELL-FYFE: My Lord, the next applications are for a number
of documents on behalf of the Defendant Von Papen, and the Prosecution
have no objection to this.

THE PRESIDENT: Sir David, a good many of them—certainly Numbers 3, 5,
and 13—have either been admitted or rejected, I think.

SIR DAVID MAXWELL-FYFE: That is so, My Lord. I had a note opposite 13. I
really think they have been dealt with, My Lord; they are in the books,
and I do not think any further discussion is required.

THE PRESIDENT: Are they all in the book?

SIR DAVID MAXWELL-FYFE: I think so, My Lord. I do not know if—Dr.
Kubuschok says he agrees with me.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: If Your Lordship please, the next is an
application on behalf of the Defendant Bormann, a request for a decree
of Hitler’s and a decree issued by Bormann in 1944. My Lord, the
Prosecution have no objection to these.

THE PRESIDENT: I do not quite understand the meaning of the last one.
Can you tell me what it means?

SIR DAVID MAXWELL-FYFE: My Lord, I took it myself that it was “to” the
SD, instead of “of” the SD—the appertaining of members of the head
office of the National Socialist Party of the SD. I am afraid that that
guess on my part does not meet with approval.

DR. FRIEDRICH BERGOLD (Counsel for Defendant Bormann): My Lord, this
concerns a decree from Bormann in which he prohibits members of the
Party Chancellery belonging to the SD. It is a decree of Bormann’s
applying to the Party Chancellery.

THE PRESIDENT: Thank you.

SIR DAVID MAXWELL-FYFE: My Lord, the remaining applications are on
behalf of the Defendant Göring, the admission of an affidavit by Baron
von Gersdorff, and a book by Joseph Chapski. My Lord, my Soviet
colleague has dealt with that by submission in writing, dated 20 June. I
did not propose to say anything further about that, My Lord. Colonel
Pokrovsky is here if Your Lordship would like to hear him further.

THE PRESIDENT: I thought we had already made an order with reference to
this.

SIR DAVID MAXWELL-FYFE: Your Lordship has.

THE PRESIDENT: We made the order on 9 June, apparently, that for the
Defendant Göring three witnesses could be produced either personally...

Perhaps we had better hear from Dr. Stahmer about this.

DR. OTTO STAHMER (Counsel for Defendant Göring): Mr. President, that is
the way I understood the decision of the Tribunal. I had applied for
five witnesses. The Tribunal ordered that I could produce only three out
of the five witnesses.

THE PRESIDENT: That is right.

DR. STAHMER: Then with reference to the affidavit nothing was said, as
far as I can remember, in that particular decision, so that I had
assumed that I would be free to ask for admission of affidavits insofar
as the Tribunal considers them necessary.

THE PRESIDENT: Dr. Stahmer, after the Tribunal had made that order about
limiting the number of witnesses to three, did you not receive a
communication, to which you have replied, I think, suggesting that
possibly you might be able to dispense with actual oral witnesses and do
that whole part of the case by affidavits?

DR. STAHMER: Yes, Mr. President, I received that communication; and I
have already negotiated about the matter with the Russian Prosecution.
We did not quite reach an agreement, however; and therefore I made a
written application to the Tribunal a few days ago.

THE PRESIDENT: Yes, but was not the agreement which you were trying to
arrive at an agreement that only three affidavits should be produced on
either side? Or was it more than three?

DR. STAHMER: No. The question which remains and which we have not agreed
upon is whether I will be given the opportunity to read a few of the
affidavits here.

THE PRESIDENT: I see. Dr. Stahmer, I think the position is, then, that
unless you are able to arrive at an agreement with the Soviet
Prosecution, we shall have to abide by our previous order.

DR. STAHMER: Very well.

THE PRESIDENT: You will make further efforts to achieve an agreement
with the Soviet Prosecution and let the Tribunal know.

DR. STAHMER: I will.

SIR DAVID MAXWELL-FYFE: I wonder if your Lordship will grant me the
indulgence of mentioning three exhibits. They all refer to the diary of
Admiral Assmann, My Lord, which was introduced during the cases of the
Defendants Dönitz and Raeder. There are three exhibits concerned.

The first is Document D-879. We thought that would be more complete if a
connecting page was put in to make the continuity of the exhibit. For
that purpose, My Lord, the Prosecution asks that Exhibit GB-482 be
withdrawn and that there be submitted the two pages which were
originally in it with a connecting page. That is merely adding a
connecting page, My Lord.

The second is Document D-881...

THE PRESIDENT: Is there any objection to that on the part of the
Defense?

SIR DAVID MAXWELL-FYFE: I do not think so, My Lord; I have not heard of
any.

THE PRESIDENT: What do the documents relate to, did you say?

SIR DAVID MAXWELL-FYFE: The diary of Admiral Assmann, who was on the
staff of the Defendant Raeder.

THE PRESIDENT: Oh, yes.

SIR DAVID MAXWELL-FYFE: My Lord, it is only a question of putting the
exhibit in proper form.

The second document, My Lord, is D-881, which is another passage from
the same diary, on 23 February 1940. I promised Your Lordship that I
should put in an exhibit when I dealt with the diary in
cross-examination; and, My Lord, the exhibit has been prepared, and I
want to put it in under the Number GB-475. That is, Document D-881 will
become Exhibit GB-475.

The third, which is in the same position as the second, is Document
D-892. That exhibit has now been prepared and will become Exhibit
GB-476. Copies are available for the defendants and will be given to
them after the approval of the Court is given.

THE PRESIDENT: And copies, of course, will be supplied to the Court as
well?

SIR DAVID MAXWELL-FYFE: Of course, My Lord. They are just awaiting the
formal approval of the Court, and they will be submitted.

THE PRESIDENT: Yes, Sir David, that is all right.

Then, Sir David, we will consider the other matter.

SIR DAVID MAXWELL-FYFE: If Your Lordship please.

THE PRESIDENT; Very well.

Yes, Dr. Thoma.

DR. THOMA: Mr. President, I just wanted to use this opportunity to
submit to the Tribunal the affidavit of Robert Scholz, the Chief of
Special Staff Rosenberg. It has been translated into English and French,
and I should now like to submit it under Exhibit Number 41 to the
Tribunal. I have already shown it to Mr. Dodd, and he has not objected.

THE PRESIDENT: Very well.

PROFESSOR DR. HERBERT KRAUS (Counsel for Defendant Schacht): Mr.
President, I wanted to ascertain whether and up to what date after this
session we may submit affidavits and documents. The reason is that
during recent days I have received two affidavits and a document, the
relevance of which we have not yet definitely decided upon.

THE PRESIDENT: Sir David, the Tribunal would like to know when the
Counsel for the Prosecution and Counsel for the Defense think would be
the best time to deal with these matters which are outstanding and with
any evidence which either the Defense or the Prosecution may wish to
bring in rebuttal.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, I have not had the chance of
discussing it with any of the Counsel for the Defense; but I should have
thought at the end of the evidence. One might reasonably hope that the
evidence will finish this week. It might be possible to deal with it on
Saturday morning or on Monday, and suit the Counsel for the Defense,
and, of course, as the Tribunal decides.

THE PRESIDENT: Yes. The Tribunal, I think, will expect the Defense
Counsel and the Prosecution to be ready, directly when the end of the
evidence comes, to deal with all these additional questions which are
outstanding and also with any applications that they may have with
reference to rebuttal.

SIR DAVID MAXWELL-FYFE: If Your Lordship please, yes.

THE PRESIDENT: I wanted that to be clearly understood, that it will be
expected that it is to be done immediately the evidence closes. That, I
think, answers Dr. Kraus’ point about the affidavits and documents. That
would be the most appropriate time.

Sir David, have you got any ideas as to how long that would take?

SIR DAVID MAXWELL-FYFE: My Lord, I think a very short time. I should
have thought that 2 days or thereabouts would see it through. I have
discussed it with Mr. Dodd, and that was the view we took.

THE PRESIDENT: Yes. In about 2 days at the outside?

SIR DAVID MAXWELL-FYFE: At the outside, My Lord, yes.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: If Your Lordship please.

[_The witness Dieckhoff resumed the stand._]

DR. VON LÜDINGHAUSEN: Witness, since what date do you know Herr Von
Neurath?

DIECKHOFF: Since 1913; I met him when I joined the Foreign Office. He
was legation counsellor in the Foreign Office at that time. I then met
him again in Constantinople, and there I had contact with him. Then I
did not meet him again until 1930.

DR. VON LÜDINGHAUSEN: In what capacity did you have dealings with Herr
Von Neurath beginning with 1930?

DIECKHOFF: Herr Von Neurath was then, from 1930 till 1932, Ambassador to
London; and I was head of the Department “England-America” in the
Foreign Office.

DR. VON LÜDINGHAUSEN: How was the co-operation during that time between
the Foreign Office—that is, yourself—and Herr Von Neurath, who was
then Ambassador to London?

DIECKHOFF: The co-operation was excellent.

DR. VON LÜDINGHAUSEN: Do you know anything about Herr Von Neurath’s
appointment to the position of Reich Foreign Minister?

DIECKHOFF: I remember that most of the leading officials of the Foreign
Office were greatly upset by the sudden departure of Brüning, whose
steady and moderate policy we approved at the time. We submitted to the
change in the person of the Foreign Minister only because Neurath
replaced Brüning and we knew that Herr Von Neurath was a man of high
standards and an experienced diplomat. Furthermore, we knew that he had
represented Brüning’s policy in London; and we expected that as Foreign
Minister he would continue Brüning’s policy.

I welcomed Herr Von Neurath, I think it was on 2 June, at the station in
Berlin when he arrived in Germany. From conversations with him I
gathered the impression that he very much disliked to leave London and
to take over the Foreign Ministry. But he said to me, “I do not think I
shall be able to refuse the wish of the old gentleman.” That, of course,
was Reich President Von Hindenburg.

DR. VON LÜDINGHAUSEN: What position did you hold yourself during the
time when you worked under Herr Von Neurath in the Foreign Ministry?

DIECKHOFF: At first, I remained at the head of the England-America
Department until 1936. Afterward, in April 1936, I took over the
re-established political department. In June State Secretary Von Bülow
died, and in August 1936 I was appointed acting State Secretary in the
Foreign Office. I remained in that provisional position until March
1937, and then I became Ambassador to Washington.

DR. VON LÜDINGHAUSEN: Did Herr Von Neurath, as Foreign Minister, retain
the old officials of the Foreign Office?

DIECKHOFF: He retained the old officials in practically all the leading
positions of both the domestic and the foreign service. The State
Secretary Von Bülow for instance remained for 4 years, until his death,
in the same position in the Foreign Office.

He sent Ambassador Von Hoesch to London as his successor, and he sent
Ambassador Von Hassell to Rome, and Ambassador Köster to Paris—all of
these were old diplomatic officials.

DR. VON LÜDINGHAUSEN: Can you tell us from your own experience during
your activities what the aims of Neurath’s foreign policy were?

DIECKHOFF: It was the aim of Herr Von Neurath to maintain good relations
with all states and thereby to re-establish gradually Germany’s status
of equal rights which we had lost in 1919. This was the same policy that
had been pursued by Stresemann and Brüning. Herr Von Neurath was aware
of the difficulties of Germany’s position. He talked to me about it
repeatedly. He was under no misapprehension about it. He saw things
realistically. His tendency was to exercise moderation.

DR. VON LÜDINGHAUSEN: What do you know about Herr Von Neurath’s entry
into Hitler’s Government, which was formed on 30 January 1933?

DIECKHOFF: I know about this only what I was told by State Secretary Von
Bülow when I returned to Berlin from leave at the beginning of February
1933. According to this, Herr Von Neurath had no part in the formation
of the new Cabinet, that is, Hitler’s Cabinet. Apart from that, he was
sick during that time. He heard of the plan of making Hitler Reich
Chancellor and of forming a new government. He wanted to discuss it with
Reich President Von Hindenburg in order to obtain certain reservations
for himself; but he came too late and could not obtain these
reservations. In spite of this, he retained the Foreign Ministry in the
new Cabinet because he did not want to refuse the wish of the Reich
President.

DR. VON LÜDINGHAUSEN: Do you know anything about Herr Von Neurath’s
attitude toward the National Socialist domestic policy?

DIECKHOFF: I know that Herr Von Neurath, soon after 30 January 1933
viewed the domestic policy with some anxiety, chiefly because he felt
that it strongly affected our foreign policy. When, in June 1933, I
visited him in London, where he attended a conference as head of the
German delegation, he told me about his anxieties; but he thought that
these things would die down and that developments would be similar to
those in Fascist Italy, where things had been very wild in the
beginning, but had settled down afterward. He was hoping that the same
would happen in Germany.

DR. VON LÜDINGHAUSEN: I am coming now to the year 1936. One of the
principal questions which dominated that year was the Austrian problem.
Can you tell us what Herr Von Neurath’s attitude was toward the repeated
interferences of German circles in the internal affairs of Austria?

DIECKHOFF: Yes. Herr Von Neurath considered such German interference in
the internal affairs of Austria not only inadmissible but damaging. He
told me so repeatedly. He was striving for an improvement of the
economic relations with Austria and thereby trying to improve gradually
the political relations also. He wanted to leave the sovereignty of
Austria untouched. This was also the aim of the agreement of 11 July
1936 between Germany and Austria, that is, the economic strengthening of
Austria and thereby the re-establishment of good political relations
between the two countries.

DR. VON LÜDINGHAUSEN: Did you hear anything before March of 1938 that
Hitler had the intention to incorporate Austria into Germany, if
necessary, with force?

DIECKHOFF: No.

DR. VON LÜDINGHAUSEN: Did you ever hear anything before 1938 that Hitler
had intended to solve the Sudeten problem by force or even to attack
Czechoslovakia?

DIECKHOFF: No.

DR. VON LÜDINGHAUSEN: Do you know whether Hitler was in full agreement
until November 1937 with the peaceful policy which Herr Von Neurath
pursued with regard to both Austria and Czechoslovakia and also with
regard to the other European countries?

DIECKHOFF: Until Herr Von Neurath’s resignation in February 1938, I
always presumed that Hitler agreed with the peaceful policy pursued by
Herr Von Neurath; and I never heard or learned anything to the contrary.

DR. VON LÜDINGHAUSEN: Do you know what the thoughts, the considerations
of Herr Von Neurath in 1935 were regarding the question of rearmament,
that is to say, the re-establishment of Germany’s military sovereignty?

DIECKHOFF: I know that Herr Von Neurath held the view that Germany, by
the declaration of the Western Powers on 11 December 1932, had been
granted equality of rights; and he considered her to have the
indisputable right to rearm after all disarmament efforts had failed.

DR. VON LÜDINGHAUSEN: I should like to put the same question to you,
with regard to the considerations and attitude of Herr Von Neurath, with
reference to the remilitarization of the demilitarized Rhineland.

DIECKHOFF: I know that Herr Von Neurath was aware of the seriousness of
this problem, for he knew that the problem of the remilitarization of
the Rhineland was interconnected with the Locarno Pact; but I know that
he saw a breach of the Locarno Pact in the Franco-Russian Agreement of
Mutual Assistance concluded in May 1935 and that as a result of the
ratification of this pact, or its going into effect, he firmly believed
that Germany had the right to re-establish military sovereignty in the
Rhineland.

DR. VON LÜDINGHAUSEN: What was the general political situation in those
days? Taking it into consideration, was it not justified to assume that
sooner or later a peaceful solution of this Rhineland problem would be
arrived at in any case?

DIECKHOFF: At any rate, the actual development after 7 March 1936 showed
that the Western Powers, though they did not agree to the
remilitarization of the Rhineland, nevertheless very quickly acquiesced
in the _fait accompli_.

I was at that time, during the second half of March 1936, for 2 weeks in
London on behalf of the Reich Government; and I had the opportunity to
discuss this matter with many Englishmen; and the view I found in the
widest circles was that as Germany had been granted equality of rights
one could not deny her the right to remilitarize the Rhineland. In some
circles I even found the view that it was a relief that the
remilitarization of the Rhineland, which was due sooner or later in any
case, was carried out so quickly and comparatively painlessly.

DR. VON LÜDINGHAUSEN: And now one last question. What do you know about
Herr Von Neurath’s resignation from the position of Reich Foreign
Minister in February 1938?

DIECKHOFF: I was Ambassador to Washington at that time and I was
completely surprised by Foreign Minister Von Neurath’s sudden departure.
I did know that there were many things he did not agree with and that he
had asked several times to be allowed to resign. I also knew that he was
ill; he suffered from a neurotic heart. I also knew that he had passed
his sixty-fifth birthday, which gave him the right to retire. But I was
surprised all the same, particularly as I did not know the details at
that time. I regretted the resignation of the Foreign Minister, in whose
peace policy I had confidence, very much. I remember that the official
circles in Washington also regretted the departure of Herr Von Neurath
very much, for Under Secretary of State Sumner Welles approached me a
few days after this event and told me that the American Government
regretted the departure of this man who had pursued a moderate policy.

DR. VON LÜDINGHAUSEN: Mr. President, I have no further questions to this
witness.

THE PRESIDENT: Do any other members of the defendants’ counsel wish to
ask him any questions?

DR. KUBUSCHOK: One single question, Witness. You said that if Von
Neurath assumed the office of Foreign Minister, you had expected that he
would continue Stresemann’s and Brüning’s policy. According to your
knowledge did he actually continue this policy of Brüning’s after he
became Foreign Minister?

DIECKHOFF: Yes.

DR. KUBUSCHOK: Thank you.

SIR DAVID MAXWELL-FYFE: My Lord, on the same basis I intimated with
regard to the last witness, the Prosecution do not desire to take up
time by asking any questions.

THE PRESIDENT: Then the witness may retire.

DR. VON LÜDINGHAUSEN: Mr. President, may I then have your permission to
call my third and last witness, Dr. Völkers, into the witness stand.

[_The witness Völkers took the stand._]

THE PRESIDENT: Will you state your full name, please?

HANS HERMANN VÖLKERS (Witness): Hans Hermann Völkers.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. VON LÜDINGHAUSEN: Witness, you were twice the personal adviser to
Herr Von Neurath; first in his position as Foreign Minister and later in
his position as Reich Protector of Bohemia and Moravia; is that correct?

VÖLKERS: Yes; since 1920 I was a member of the Foreign Office, and I
spent all my time abroad. Under Stresemann I spent 4 years in Geneva as
Consul General and as the permanent German representative to the League
of Nations; and in 1932 I was called to the Foreign Office and became
personal adviser to the newly, appointed Foreign Minister, Herr Von
Neurath. I remained in that position for a year; and then, upon my own
request, I was sent to Madrid as Embassy Counsellor, and later I became
Minister to Havana. In 1939 I was called back to the Foreign Office to
act as personal adviser with the title of chief of the office of Herr
Von Neurath, who in the meantime had been appointed Reich Protector in
Prague.

DR. VON LÜDINGHAUSEN: Did this appointment as personal adviser to Herr
Von Neurath in Prague take place on the basis of any personal relations
or merely for professional reasons?

VÖLKERS: Only for professional reasons. Until I was his attaché in
Berlin I did not know Herr Von Neurath.

DR. VON LÜDINGHAUSEN: What was the attitude of the officials of the
Foreign Ministry toward Herr Von Neurath’s appointment as Foreign
Minister?

VÖLKERS: I had the impression that the officials of the Foreign Office
were generally most satisfied that in view of the difficult internal
political situation an old professional diplomat and expert minister
took over the direction of the Foreign Ministry, because they saw in
that a guarantee for a steady foreign political course; all the more so
as it was known that Herr Von Neurath had the special confidence of
Reich President Von Hindenburg and because he enjoyed, due to his entire
personality and his equanimity, the special recognition and veneration
of all the officials of the Foreign Office.

When Hitler came to power I had the impression that he was skeptical and
reserved toward him. He did not belong to the circle of the closer
associates of Hitler, and during the time I was with him he never
attended these evening conferences which Hitler held in the Reich
Chancellery in those days.

Gradually, however, the pressure on the Foreign Office increased more
and more. The Auslands-Organisation was created and the office of
Ribbentrop started a competitive enterprise into which were called all
sorts of people who had been abroad. They made all sorts of reports
which went directly to the Führer without being controlled by the
Foreign Office. And then later on the head of the Auslands-Organisation
was installed as commissioner in the Foreign Office while Prince Waldeck
was transferred into the personnel department of the Foreign Office. At
that stage the pressure became so strong that finally one could not
fight against it any more.

But the fact that the Foreign Office had isolated itself for so long and
that it was still evading the pressure of the Party, that, I think, is
certainly the merit of the then Foreign Minister and his State Secretary
Von Bülow. When the Jewish laws were then introduced into the Foreign
Office, too, I know that Herr Von Neurath protected, as far as that was
possible, his officials. I was in Stockholm during the last 2 years of
the war and met there two former colleagues of mine with whom I am close
friends. One is Ministerial Director Richard Meier who used to be in
charge of the Eastern department and who had to leave quite soon and who
often told me in Stockholm how grateful he was to Herr Von Neurath for
not only having enabled him to take with him his family and his
furniture and everything when he went abroad but also that Herr Von
Neurath, until the collapse, continued to pay him his monthly pensions
in Swedish kroner.

DR. VON LÜDINGHAUSEN: What was your position and your activity in Prague
in the Government of the Protectorate?

VÖLKERS: My position in Prague with the Government of the Protectorate
was approximately the same as the one I had 7 years earlier when I had
been personal adviser to the Foreign Minister in the Foreign Office in
Berlin, with the exception that in the Foreign Office there is a special
protocol department and a chief of protocol, whereas in Prague I was
also in charge of all protocols and ceremonial affairs, and that was
really my chief occupation. I was head of the so-called Office of the
Reich Protector, not to be confused with the principal authority, with
which I had nothing to do. When I came to Prague in the summer of 1939
the office already had been functioning for several months. My
predecessor was one Legation Counsellor Von Kessel from the Foreign
Office. Apart from myself two other officials from the Foreign Office,
who were subordinated to me, belonged to the Office of the Reich
Protector, also one Count Waldburg, whose mother was a Czech and who was
engaged by the Reich Protector because he was hoping to establish,
especially through him, good relations with the Czechs.

The office was responsible, apart from the general and usual routine
matters, for dealing with the private correspondence and the handling of
personal petitions. In the course of time we had to set up a special
department, because later on, when the many arrests took place, we
received so many petitions, most of which were addressed to the Reich
Protector personally...

THE PRESIDENT: Dr. Von Lüdinghausen, surely this is very remote from
anything we have got to consider, and all the previous evidence this
witness has given has been cumulative evidence which has not been
cross-examined upon before; and now what he is saying is all very remote
to anything we have to consider.

DR. VON LÜDINGHAUSEN: In fact, I have already come to an end, Mr.
President. I merely wanted to show that he is in a position to answer
the following questions from his own knowledge.

[_Turning to the witness._] What can you tell us from your own
observations and experiences about the attitude of Herr Von Neurath
toward the Czechs?

VÖLKERS: I can give you only general impressions. As I have already told
you, I had nothing to do with the actual activities of the office but
was attached to Herr Von Neurath personally only for his private affairs
and all ceremonial matters. But I do know, and he told me, that when he
took over his position as Reich Protector, he did so with the intention
of treating the Czech population as justly and decently as possible in
order to create, by smoothing out the differences, a healthy basis for a
peaceful living, side by side, of the two nations. He told me frequently
that he was appointed Reich Protector, that is, protector of the Czechs;
and we knew that the last German Ambassador in Prague, Dr. Eisenlohr,
had often reported that the last Czechoslovakian Government, for their
part, had been prepared to effect an Anschluss with Germany. He was an
opponent of using military measures, and Herr Von Neurath told me when I
came to Prague—I think it was in September 1938—that he had expressed
himself very strongly against their use and that he together with Göring
had visited Hitler in Munich in order to dissuade him from that.

In my office I experienced again and again that Herr Von Neurath—shall
I go on—was very open-handed toward the Czechs with regard to
petitions. He had a lot of sympathy and understanding; he examined each
individual case, and that was very well known among the Czechs. And as
we in this office had the possibility of submitting each single request
and petition of Czech individuals directly to the highest chief, the
Czech petitioners very frequently and gladly used this channel because
the prospects for a positive action on their private requests and
petitions through the highest local chief promised to be much more
favorable than if they were quickly processed by the authorities
concerned in the Government. Particularly this practice brought us in
conflict with the State Secretary...

THE PRESIDENT: Dr. Von Lüdinghausen, this witness is simply making
speeches, you know. You are not asking him any questions at all. He is
simply going on...

DR. VON LÜDINGHAUSEN: Witness, what do you know about the personal and
official relationship between Von Neurath and the President of State
Hacha?

VÖLKERS: According to my observations, the personal and official
relationship between the Reich Protector and the President of State
Hacha was excellent; and I believe that this was not merely a matter of
form, but I had the impression that Herr Von Neurath really and
sincerely liked the President of State because he considered him a very
decent and upright man who, under the existing circumstances...

THE PRESIDENT: Witness, when you see your counsel has heard enough of
your answer, surely you can stop...

VÖLKERS: Very well.

DR. VON LÜDINGHAUSEN: What was the relationship between Herr Von Neurath
and the State Secretary attached to him, Frank?

VÖLKERS: That was a very bad one. Herr Von Neurath told me already at
the time when I assumed my office that he had had considerable
difficulties with him because of his definite anti-Czech attitude, as a
Sudeten German—an attitude which a Reich German could not easily
understand. He had always hoped, however, that Frank, who was not a
civil servant but an outsider, would gradually follow his policy and
adapt himself to the civil service staff. But unfortunately this was not
possible. I do not know when...

DR. VON LÜDINGHAUSEN: Witness, can you describe to us briefly what the
actual official powers of Herr Von Neurath and Frank were in relation to
each other?

VÖLKERS: Herr Von Neurath was the superior of the State Secretary. The
State Secretary was in charge of the entire internal administration,
which was a very large one. Under State Secretary Von Burgsdorff, who I
think has been examined already before this High Tribunal, worked under
him. Besides being State Secretary, Frank was also the Higher Police and
SS Leader.

DR. VON LÜDINGHAUSEN: Now, did Herr Von Neurath have a certain influence
on this part of Frank’s activities, that is to say, in his capacity as
Higher SS and Police Leader?

VÖLKERS: The way conditions were he had practically no influence. I do
not know whether in the beginning the matter had already been legally
settled. In practice, however, the Police and the State Secretary were
completely independent from Herr Von Neurath regarding police measures.
This had some connection with the situation in the Reich, where Himmler,
too, led the entire Police and SS, having taken the police powers away
from the Ministry of the Interior. As far as I can remember, the matter
was legally settled in the autumn of 1939 to the effect that the Police
was independent and that Herr Von Neurath was to be informed afterward
of all measures taken.

DR. VON LÜDINGHAUSEN: You mean by that the decree regarding the
organization of the administration and the German Security Police in the
Protectorate, under date of 1 September 1939?

VÖLKERS: Yes, I think that is the one. The first part referred to the
administration and the second part to the Police.

DR. VON LÜDINGHAUSEN: Mr. President, may I remind you that the wording
of this decree is contained in my document book under Number
Neurath-149.

THE PRESIDENT: It has been submitted as evidence?

DR. VON LÜDINGHAUSEN: Yes. I merely wanted to remind you that I have
presented it.

[_Turning to the witness._] Was Herr Von Neurath at least informed
afterward, in accordance with the instructions, of the police actions
which Frank carried out independently?

VÖLKERS: The Chief of the Police was an SS man by the name of Böhme. He
used to report to the Reich Protector several times each week. I do not
believe that he informed him in advance of intended police actions. We
never heard anything like that. Whether he reported such actions
afterward and in their entirety is something which I cannot say. The
rule was that the Reich Protector sent to him, for comment, the various
petitions from the next of kin of Czechs who had been arrested and that
Böhme would bring them along when he came to report. That was generally
the way the Reich Protector was afterward informed.

DR. VON LÜDINGHAUSEN: Well then, when Herr Von Neurath was later on
informed of such police measures, no matter in which way, did he make
attempts for the suspension of arrests or for any limitation and
mitigation of such police measures?

VÖLKERS: As I have already told you, we had set up in the small office
of the Reich Protector a special department for the purpose of receiving
such applications. This department, which of course was directly under
the jurisdiction of the Reich Protector, did everything possible in
order to reassure the next of kin and to bring about the releases of the
detained persons. The work was particularly difficult because these
local departments, the local police chief and also State Secretary
Frank, usually took a negative attitude. Again and again the Reich
Protector would then appeal directly to Himmler and very often to the
Führer himself. I know and remember that there was a very excited
correspondence with Himmler and that Herr Von Neurath repeatedly
complained to the Führer about this.

DR. VON LÜDINGHAUSEN: Witness, can you judge, or can you tell us how far
Herr Von Neurath, as Reich Protector, apart from the Police and police
measures, was free and independent in his political and economic
measures and orders, or how far he was depending on Berlin when giving
those?

VÖLKERS: When I came to Prague there were all sorts of other offices
beside that of the Reich Protector. For instance, there was a Reich
Commissioner for Economy who, as far as I can remember and as I heard at
the time, had already begun to exercise his functions when the Office of
the Reich Protector had not yet been established. Then there was a
Plenipotentiary for the Four Year Plan and there was the Armed Forces
Plenipotentiary who had a large staff. Even the Party agencies were not
centrally organized. Prague and the north belonged to the Sudetengau
under Gauleiter Henlein; the whole of Moravia belonged to the
Niederdonau Gau, under Gauleiter Dr. Jury; and the west belonged to a
third Gau. All these Gauleiter tried, in turn, on their part...

THE PRESIDENT: Counsel, this is all detail, is it not, and quite
unnecessary detail?

DR. VON LÜDINGHAUSEN: Do you know anything about Von Neurath’s attitude
toward numerous plans of germanizing the Czechs?

VÖLKERS: No, I know nothing about that. I remember only that, right at
the beginning of the war, Herr Von Neurath told me that the whole
structure of the Protectorate was regarded by him as a temporary
solution and that the peace would have to decide the ultimate fate of
Czechoslovakia.

DR. VON LÜDINGHAUSEN: Well, then, as you probably remember, in the
autumn of 1939 there were the first demonstrations in Prague on the
occasion of the Independence Day of Czechoslovakia, on 28 October 1939.

VÖLKERS: Well, I cannot remember the details. There were demonstrations
on a Czech national holiday in October. As far as I can remember, they
took place on the Wenzel Platz, and the Národni-ulice. I, personally,
did...

DR. VON LÜDINGHAUSEN: What do you know about the consequences of new
demonstrations particularly on the part of the students at Prague when a
wounded student died and was buried on 15 November? What do you know
about these demonstrations and what happened immediately in the wake of
these demonstrations?

VÖLKERS: Previous to the second demonstration, as far as I remember, the
instruction was given to exercise restraint. The demonstrations were
generally, as I was told later, not particularly alarming. In spite of
this, Frank had reported to Berlin about it. At any rate, the Reich
Protector and Frank and General Friderici were called to Berlin for a
conference with Hitler in the Reich Chancellery. I accompanied the Reich
Protector at the time. Chvalkovsky, the Czech Minister in Berlin, was
also invited. I was present when Hitler, in a very excited and rude
manner, reproached the Minister because of the events, for which he was
holding the Czech Government responsible. Whether the closing of
universities was discussed on that occasion, I cannot remember, nor can
I remember having heard him threaten the shooting or arrest of students.
The manner in which Hitler treated the Minister was most embarrassing to
us. The Minister then left the room without saying a single further
word. As far as I can remember, the subject was then mentioned no
further. We had lunch, and when saying goodby, Hitler said to Frank that
he wanted to talk with him some more.

Herr Von Neurath was not asked to stay and I remember that while walking
home with him he was very angry about it. On the following day, I
traveled back with Herr Von Neurath while Frank had already left the
same night for Prague. I remember that when I came into the office in
Prague, I saw a red poster declaring that because of the demonstrations,
the shooting of the leaders and the arrest of students and the closing
of universities had been ordered; that poster carried Neurath’s
signature. As I did not know what had happened in Prague in the
meantime, I was utterly surprised, because I had heard nothing about
these measures in Berlin; and I suspected an intrigue on Frank’s part
and went to report the matter to Neurath. I had the impression that Herr
Von Neurath was deeply upset and just as unpleasantly surprised as I was
and that he had known nothing at all about this previously. Soon
afterward Frank passed through my room going into Neurath’s room,
carrying that red poster under his arm. I do not know whether Von
Neurath had sent for him or whether he came on his own initiative.

DR. VON LÜDINGHAUSEN: Did Herr Von Neurath afterwards, at least after
this unfortunate matter had occurred, use his influence for the release
of these students who had been arrested?

VÖLKERS: Yes. He immediately used his influence, but he did not even
succeed in getting hold of the list of names of the arrested students.
Only after urging the Czechs for a long time did we receive from the
Czech Government an incomplete list of names. In spite of this, Herr Von
Neurath immediately worked for their release; and he did, in fact, have
excellent results in that connection as time went by.

DR. VON LÜDINGHAUSEN: Do you know anything about what was done to
accommodate or employ those students who, on account of these
demonstrations and the subsequent closing of the universities, had more
or less become idle?

VÖLKERS: No, I know nothing about that, and I had nothing to do with
that matter.

DR. VON LÜDINGHAUSEN: But do you know whether Herr Von Neurath
repeatedly urged Hitler to reopen the universities?

VÖLKERS: Yes, I remember that the chancellor, named Rosny, of the Czech
University, whom I knew well, had asked me once for that and I reported
it to Herr Von Neurath and Herr Von Neurath again made efforts at the
time; but as far as I know, as long as we were in Prague the
universities were not reopened.

DR. VON LÜDINGHAUSEN: Do you remember a Czech Fascist organization,
Vlayka? I do not know whether I pronounce the name correctly.

VÖLKERS: Yes, I do, but I know very little about it. I only know that we
received in the office a number of pledges of loyalty sent to us by
members of the movement, and I also know that we had been informed by
Czech sources that these people were partly criminal and generally not
worth much. Herr Von Neurath adopted quite generally the view that this
was an internal affair of the Czechs and that, after all, these were
people who wanted to work together with us. But he, on his part, refused
any collaboration; and such letters and pledges were never answered, I
believe, by our office. But I know...

DR. VON LÜDINGHAUSEN: Herr Von Neurath was also, besides being Reich
Protector, president of the Secret Cabinet Council. Did you, since you
partly handled his correspondence of a more personal nature, notice
anything indicating that Herr Von Neurath became active in this capacity
as president of the Secret Cabinet Council?

VÖLKERS: No. As long as I was in Prague, Herr Von Neurath was never
active. On the contrary, on one occasion he told me that Hitler, when he
appointed him, had told him that he should not think that he would ever
call a meeting of the Cabinet Council.

DR. VON LÜDINGHAUSEN: Herr Von Neurath was also a member of the
so-called Defense Council. Did he ever have anything to do in this
capacity in Prague?

VÖLKERS: No, I did not know that he was a member of the Defense Council.
The fundamental decrees from Berlin concerning the Protectorate were
frequently signed by the Ministerial Council for the Defense of the
Reich—I believe that was the name—but Neurath had never signed or
countersigned them.

DR. VON LÜDINGHAUSEN: Herr Von Neurath was appointed, as is well known,
an honorary Gruppenführer of the SS and later, honorary
Obergruppenführer of the SS. Did Herr Von Neurath at that time, when he
was in Prague, ever wear that uniform?

VÖLKERS: As a rule, he wore his Reich Minister uniform. A portrait was
also once made of him in that uniform. He used to wear civilian clothes
a great deal. It may be that he once wore the black uniform of the SS,
on the occasion of a parade of the SS; but I do not know for certain
now. Otherwise, he never wore it.

DR. VON LÜDINGHAUSEN: Do you know anything about the circumstances and
reasons concerning Herr Von Neurath’s departure from Prague in September
1941?

VÖLKERS: When Herr Von Neurath was ordered to come to headquarters that
September, he was accompanied by his military adjutant. I met him at the
airfield; and in the car he told me that Hitler had been furious because
of the acts of sabotage in the Protectorate and wanted to send Heydrich
to do some exemplary punishing. He, Neurath, had stated that he did not
want to have anything to do with that and had asked for his release.
Hitler then had ordered that he should first of all go on leave, and so
he did. He departed on one of the following days.

DR. VON LÜDINGHAUSEN: Mr. President, I have no further questions.

Mr. President, may I make one request at the end of my case. I have not
yet been able to submit all documents because I have not yet received
all the translations. May I reserve myself the right to submit the few
remaining documents, perhaps at the end of the case of my colleague, Dr.
Fritz?

THE PRESIDENT: You need not wait for the translation. You can offer the
documents in evidence now. Put in a list with the numbers.

DR. VON LÜDINGHAUSEN: Mr. President, I have not got them with me, I am
afraid. Perhaps, if I may, I could do so tomorrow or the day after when
Dr. Fritz is finished.

THE PRESIDENT: Yes, certainly.

Do any of the defendants’ counsel want to ask any questions?

[_There was no response._]

Does the Prosecution wish to cross-examine?

SIR DAVID MAXWELL-FYFE: My Lord, the Prosecution do not wish to
cross-examine, on the same basis.

My Lord, may I refer to one collection of documents that are in our
Document Book 12b, the collection of the anti-Jewish decrees in the
Protectorate. They are all from the _Verordnungsblatt_ for the
Protectorate, and the Prosecution ask the Tribunal to take judicial
notice of them as being an official publication. The collection is
merely for convenience and access of the Tribunal.

THE PRESIDENT: Then the witness can retire.

Then that closes your case for the present, Dr. Lüdinghausen. The
Tribunal will now adjourn.

                        [_A recess was taken._]

THE PRESIDENT: I call on counsel for the Defendant Fritzsche.

DR. HEINZ FRITZ (Counsel for Defendant Fritzsche): Mr. President, I
intend to present the case of the Defendant Fritzsche as follows:

First, I should like to call the Defendant Fritzsche to the witness
stand and then the witness Von Schirmeister. In the course of these two
examinations I intend to present to the Tribunal a few affidavits and to
refer to these and to the rest of the contents of my two document books.

In its decision of 8 March 1946 the Tribunal granted as witnesses for my
case: First, Herr Von Schirmeister, second Dr. Krieg; and as documents:
The text of all radio speeches of the Defendant Fritzsche from 1932 to
1945 and the archives of Deutscher Schnelldienst (fast official news
service) of the Propaganda Ministry. Of all the evidence, in spite of
the efforts of the General Secretary, unfortunately only the witness Von
Schirmeister could be brought here. Therefore, I had to rearrange my
case and ask for the indulgence of the Tribunal if I go into a somewhat
greater detail than originally intended in examining the Defendant
Fritzsche and the witness Von Schirmeister.

With the approval of the Tribunal I shall now call the Defendant
Fritzsche to the witness stand.

[_The Defendant Fritzsche took the stand._]

THE PRESIDENT: Will you state your full name, please?

HANS FRITZSCHE (Defendant): Hans Fritzsche.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The defendant repeated the oath._]

THE PRESIDENT: You may sit down.

DR. FRITZ: Herr Fritzsche, will you please describe briefly your career
up to the year 1933?

FRITZSCHE: As to that, may I refer to my affidavit, Document 3469-PS,
Points 1 and 3 to 8? In addition I can limit myself now to a broad
outline.

DR. FRITZ: Mr. President, I should like to remark at the beginning of
the examination that my document books, of which I have two, have not
yet been completely translated. This affidavit, which the defendant has
just mentioned, is also contained in the document book for the
Prosecution. I do not know whether the Tribunal now has this document
book.

THE PRESIDENT: Well, you can go on.

FRITZSCHE: I was born on 21 April 1900. My father was a civil servant. I
attended the gymnasium to study classics. Then I was a soldier in the
first World War, returned to school, and afterward, studied philosophy,
history, and national economics at various universities.

After the first World War my life and my work were determined by the
distress of my people. We called this distress “Versailles.” Enough has
been said here as to the Versailles Treaty. I need add nothing to what
has already been said.

DR. FRITZ: You were striving then in your journalistic work before 1933
for a change of the Versailles Treaty?

FRITZSCHE: Yes, of course.

DR. FRITZ: Did you seek this change through war?

FRITZSCHE: No, I sought it through the means of law, of politics, and
economic common sense, which were at that time all on the German side.
Along with this, certain restoration of the power of the German Reich
would have been desirable because I saw in the weakness of the Reich a
potential danger of war. But to change the Treaty of Versailles by means
of war did not seem to me to be possible, expedient, nor desirable. The
same sentiment prevailed later under the Hitler Government.

Adolf Hitler gave two assurances on just this point which, for me and
for millions of other Germans, were especially impressive. The first was
the assurance: “I myself was a simple soldier and therefore know what
war means.” The second was the statement: “In all the bloody wars of the
last thousand years not even the victors gained as much as they had
sacrificed in the war.” These two assurances sounded to German ears like
holy and binding oaths. Whatever in Hitler’s policy should have violated
these two assurances was a betrayal of the German people.

DR. FRITZ: When, how, and why did you come to the NSDAP?

FRITZSCHE: After my entry into the Propaganda Ministry I joined the
Party. I refer again to my affidavit, 3469-PS, to Points 9 to 13.

I did not join the NSDAP on account of the Party program, nor through
Hitler’s book _Mein Kampf_; nor did I join because of the personality of
Hitler, whose suggestive power, which has frequently been mentioned
here, escaped me entirely. I rejected the harsh radicalism of the
methods of the Party. This harsh radicalism was contrary to the habits
of my whole life and my personal principles. Due to this coarse practice
I even came into a conflict with the Party in 1932.

I joined the Party when it had, without doubt, won over the majority of
the German people. This Party had overcome, at the time, the disunion of
the German people and brought it unity after Brüning’s great attempt at
recovery on a democratic basis had failed on account of the foreign
political opposition, not because of the resistance of the German
people. After the cabinets also had failed to find a footing among the
people, the appointment of Hitler, as Reich Chancellor, meant a return
to democratic principles. Much has been said here about these matters. I
ask for permission to cite one circumstance which, to my knowledge, has
not yet been mentioned here and which does have a certain significance.

When I joined the NSDAP I did not believe I was really joining a party
in the true sense of the word, for the NSDAP did not have a party theory
similar to those of the Marxist parties which had a developed and mature
theory; all theorists of the Party were disputed. The theoretical
writings of Gottfried Feder had been prohibited. The theorist Rosenberg
was disputed in the Party to the very end. The lack of a theory for the
Party was so great that even the printing of the bare Party program was
forbidden for the German papers. The German papers were even forbidden a
few years after 1933 to quote arbitrarily any part of Hitler’s _Mein
Kampf_.

At that time, then, I did not believe that I was joining a narrowly
defined party but I thought I was joining a movement, a movement which
united in itself contrasts such as those between Ley and Funk, between
Rosenberg and the Reich bishop; a movement which was variable in its
choice of methods; which at one time prohibited the labor of women and
at some other time solicited this same labor of women. I believed I was
joining such a movement because one group within the NSDAP saw in the
swastika flag nothing but a new combination, a new form for the colors
black, white, and red, while another group saw in this banner the red
flag with a swastika. It is a fact that there were whole groups of the
former German Nationalist Party in the NSDAP or of former Communists in
the NSDAP. Thus, I hoped to find in this wide-flung Movement a forum for
intellectual discussions which would no longer be carried on with the
murderous animosity which had previously ruled in Germany but which
could be carried on with a certain discipline dominated by nationalist
and socialist conceptions.

For this reason and by making constant compromises, I put aside my own
wishes, my own misgivings, my own political beliefs. In many
conversations I advised my friends to do the same when they complained
that they and their interests were not given proper consideration during
the time of the Nazification. I came to the conviction that millions of
Germans had joined the Party only for this reason and in this
expectation. They thought they were serving a good cause. Out of pure
idealism they were willing to sacrifice everything to this cause,
everything except their honor. Meanwhile, I had to realize that the
leader of this cause accepted the sacrifice of these idealists, that he
squandered it, and that, besides, he stained their honor with a
senseless and inhuman murder, unique in history—a murder which no war
necessity could have justified, for which one could not even find any
reason in any necessity of war.

DR. FRITZ: Now, the Prosecution accuses you of having—and I quote,
“...sworn the customary oath of unconditional loyalty to Hitler” in
1933. For whatever reason you did this, the fact that you took this oath
is true, is it not?

FRITZSCHE: Yes, I also swore, twice, an oath to the Weimar Constitution,
in 1933 and 1938. Let me add something. It was always and it still is my
conviction that no oath relieves a man of his general duties to
humanity. No one is made an irresponsible tool by an oath. My oath would
never have made me carry out an order if I had recognized it to be
criminal. Never in my life did I obey anyone blindly. For that reason, I
do not refer for any of my actions to my duty to obey.

DR. FRITZ: Did you keep the oath which you took?

FRITZSCHE: Yes. No actions were expected of me which I could have
considered criminal or a violation of written or unwritten laws.
Moreover, I kept the oath which I took, not to Hitler, but to the German
people.

DR. FRITZ: How long did you keep the oath?

FRITZSCHE: I kept it to the end. Then, it is true, I remained in Berlin,
in violation of the order which I was given. When Hitler and his
entourage took the way of suicide or fled toward the West, I was, to my
knowledge, the only higher official to remain in Berlin. At that time I
gathered together the employees of the highest Reich authorities, who
had been left to their fate, in the ruins of my office. Hitler had left
behind an order to fight on. The commander of Berlin could not be found.
Therefore, as a civilian, I felt obliged to offer to the Russian Marshal
Zhukov the capitulation. As I was sending off the emissaries who were to
go across the battleline, the last military adjutant of Hitler
appeared—General Burgdorf—and was going to shoot me in compliance with
Hitler’s order. Nevertheless, we capitulated, even though it was signed
by the commander, who had been found in the meantime. Thus, I believe I
kept my oath, the oath which I had taken to the German people in the
person of Hitler.

DR. FRITZ: Did you hold an office in the Party?

FRITZSCHE: No.

DR. FRITZ: Were you a political leader?

FRITZSCHE: No.

DR. FRITZ: Were you in the SA or the SS or any one of the other
organizations which are accused here?

FRITZSCHE: No.

DR. FRITZ: Did you ever take part in a Party rally?

FRITZSCHE: No.

DR. FRITZ: In one of the celebrations of 9 November in Munich?

FRITZSCHE: No.

DR. FRITZ: Then, please describe briefly your position and your work
from 1933 to 1945.

FRITZSCHE: Here, again, I may refer to my affidavit, 3469-PS, that is,
to the rest of the affidavit. Thus I may again limit myself to a very
brief presentation to supplement what is said in the affidavit.

At the seizure of power by National Socialism, I remained what I had
been previously, Chief Editor of Drahtloser Dienst. That was the name of
the German radio news service. I held that position for 5 more years.

In May 1933 this wireless service, which had been a part of the Reich
Radio Company, was incorporated into the press section of the Propaganda
Ministry. As I was a specialist in journalistic news service, I soon was
entrusted with the news agencies, first the smaller ones such as
Transozean or Europapress or Eildienst. Later I was entrusted with the
big Deutsches Nachrichtenbüro (German news service).

At that time, I had no power to issue orders to the agencies, for I was
still an employee of the Ministry and not yet an official. I also had no
right to determine the contents of the news. I had only the
organizational supervision, but I believe that my advice was respected
at the time. In those days I also gave other advice of a journalistic
nature. Then in December 1938 I became head of the German Press Section.
I became Ministerial Director. As an official I still felt like the
journalist I had been for decades previously. I continued to direct the
German Press Section until the spring of 1942.

At that time I did not agree, among other things, with the colored press
reports of my superior, Reich Press Chief Dr. Dietrich. For that reason,
I became a soldier and went to the Eastern Front.

In the fall of 1942 I was called back by Dr. Goebbels. Dr. Goebbels
approved my previous criticism, of which he knew. He offered me the
direction of the Radio Section of his Ministry. I answered that I could
return to the Propaganda Ministry only if I had the certainty that a
termination of the war by political means would be sought and that total
military victory would not be striven after, which from the first day of
the war I had considered impossible. I told Dr. Goebbels at that time
literally, “I am not going to participate as a propagandist in a fight
of self—destruction such as was fought by the Goths at Mount Vesuvius.”

Dr. Goebbels answered that Hitler and he, also, were seeking a
termination of the war by diplomatic means on the basis of reaching some
sort of understanding. He promised me that he would inform me in time if
he noticed that the Führer was changing these intentions. Dr. Goebbels
repeated this promise at intervals of a few months, up to the end of the
war; and each time that he repeated it, he always gave me substantiated
indications about the political efforts in progress at the moment. Today
I have the feeling that he broke his promise.

Well, at that time I took over the Radio Section of the Propaganda
Ministry, and I became Ministerial Director.

DR. FRITZ: Those were your official positions. But they were less known
to the public. Better known were your radio speeches. What about them?

FRITZSCHE: Since 1932 I spoke once a week, for 10 to 15 minutes, on some
German stations and on the Deutschlandsender (radio station for foreign
broadcasts). At the beginning of the war I spoke daily on all the
stations, I believe for 3 or 4 months. Then I spoke three times a week,
then twice a week, and finally once a week again. At first these radio
speeches were just reviews of newspaper articles; that is, a collection
of quotations from domestic and foreign newspapers. After the beginning
of the war, however, these speeches, of course, became a polemic on the
basis of quotations mostly from foreign papers and foreign radio
stations.

DR. FRITZ: Did your speeches have an official character? The Prosecution
says that they were, of course, under the control of the Propaganda
Ministry.

FRITZSCHE: That is not correct in that form. The speeches were not
official. At the beginning they were purely personal elaborations. Of
course, I could not prevent, as time went on, the private speeches of a
man holding a position in the Propaganda Ministry being no longer
considered as personal, but semi-official.

DR. FRITZ: You just said “personal elaborations,” which was later
considered “semi-official.” For clarification I ask, could one criticize
these speeches, or was one arrested for so doing?

FRITZSCHE: Criticism was not only allowed, but actually it was done. I
had an extensive correspondence with my critics, although only with
those who signed their names. There were of course also anonymous
critics, but I may add that the anonymous critics had only general
complaints.

After the outbreak of the war a South German office of public
prosecution and later the Ministry of Justice, offered me a certain
protection for my publications, apparently on the assumption that they
were official or semi-official. It was suggested to me to appear as
co-plaintiff in possible libel actions. I categorically refused this,
stating, as I have often done both privately and publicly, that people
must be allowed to grumble about something. If they are forbidden to
criticize the State and the Government, then they must be allowed at
least to criticize the press, the radio, and me.

DR. FRITZ: How did you prepare these speeches? Were they put down in
writing and censored beforehand?

FRITZSCHE: I always refused to let them be censored beforehand. The
material was gathered very carefully. It was kept in the so-called
“Archiv-Schnelldienst” which had been applied for and approved by the
Tribunal to be brought here but which could not be found.

The material consisted of clippings from papers, reports of news
agencies, and reports from foreign broadcasts. The investigation of
doubtful matters was done by a special official. A rough draft of the
speech was then dictated and then delivered freely. Therefore, this
procedure was different to that of writing an article; not every
sentence had to be polished, because in a written matter every word
counts, whereas in a speech it is more the total impression which is
decisive.

DR. FRITZ: Now, you worked in the Propaganda Ministry; Dr. Goebbels was
the Minister. His name has been mentioned here frequently in connection
with his various positions as Reich Minister for Propaganda, Reich
Propaganda Director of the NSDAP, Delegate for Total War Effort, and
Gauleiter of Berlin. In which of these capacities did you deal with Dr.
Goebbels?

FRITZSCHE: Exclusively in his capacity as Propaganda Minister.

DR. FRITZ: Were you his representative there?

FRITZSCHE: No. In the last 2½ years I was his commissioner for radio
broadcasting and, in addition, head of one of the 12 departments of his
Ministry. Dr. Goebbels’ representatives were his state secretaries. The
last one was Dr. Naumann who was his successor for one day.

DR. FRITZ: Was Dr. Goebbels your only and direct superior?

FRITZSCHE: No. There were many offices between him and me at first, and
still a few later on. This is the first time, here in the dock, that I
am without official superiors.

DR. FRITZ: By the way, whom of the defendants did you know or with whom
did you have official or personal relations?

FRITZSCHE: I had two or three official conversations, shortly after
1933, with Funk, who was then State Secretary in the Propaganda
Ministry, mainly dealing with economic and organizational matters. I
discussed with him the financial plans for the reorganization of the
news service.

Then, I once had a talk with Grossadmiral Dönitz on a technical matter.
I called on Seyss-Inquart in The Hague, and on Papen in Istanbul. I knew
all the others only by sight and first made their personal acquaintance
during the Trial.

DR. FRITZ: How about Hitler?

FRITZSCHE: I never had a conversation with him. In the course of 12
years, however, I saw him, of course, several times at the Reichstag on
big occasions or receptions. Once I was at his headquarters and was
invited to dinner with a large number of other people. Otherwise, I
received instructions from Hitler only through Dr. Dietrich or his
representative or through Dr. Goebbels and his various representatives.

DR. FRITZ: What were your relations with Dr. Goebbels? Were you on
friendly terms with him? Did you meet with him frequently?

FRITZSCHE: One can by no means say that we were friends. The
relationship was on an official basis, reserved and to a certain extent
formal. I was personally even less frequently with him than other
assistants of Dr. Goebbels of my rank. But I believed I observed that he
treated me with more respect than any other of his co-workers. To that
extent, I occupied a certain special position. I valued Dr. Goebbels’
intelligence and his ability, at least sometimes, to change his own
opinion in favor of a better argument. I saw him about twice a year
during the first 5 years. When I was head of a department I saw him
perhaps once a month. After the outbreak of war I saw him daily in the
course of a conference with 30 to 50 fellow employees; and in addition,
about once a week I had a conference on special subjects with him.

DR. FRITZ: Now we come to the subject of propaganda. Can you sketch the
propaganda system in the Third Reich?

FRITZSCHE: I shall try it. There were three types of propaganda. The
first was the unorganized agitation of the radical fanatics in the
Party. It was present in all fields, in the fields of religion, racial
policy, art, general policy, and the conduct of the war. As time went by
Martin Bormann became more and more the leader of this unorganized
agitation.

The second type of propaganda was under the Reich Propaganda Directorate
of the NSDAP. The head of this was Dr. Goebbels. It attempted to put the
agitation of the radicals on a more presentable basis.

The third type was the state organization of the Reich Propaganda
Ministry.

DR. FRITZ: The Prosecution contended at the beginning that you had been
also head of the Radio Section of the Propaganda Directorate of the
NSDAP. How about that?

FRITZSCHE: The Prosecution have withdrawn that assertion. They said that
they had no proof. It would have been more correct to say that this
statement has been proved to be false. I refer to my affidavit, 3469-PS,
Point 37. There I state that I was not—in contrast to all of my
predecessors, as far as I know—head of the Radio Section of the
Ministry and at the same time head of the Radio Section of the Party.
Today I supplement this statement by saying that I held no office
whatever in the Party.

DR. FRITZ: You have been accused of having helped Dr. Goebbels plunge
the world into the blood-bath of aggressive war. Is that true? Did Dr.
Goebbels ever speak with you about aggressive plans?

FRITZSCHE: No; I never heard of any intention to wage aggressive war,
either from Dr. Goebbels or from anyone else.

DR. FRITZ: In the course of this Trial some conferences have been
mentioned here several times at which, it was said, various aggressive
plans were discussed; for example, before the attack on Czechoslovakia,
before the attack on Poland, and on Norway, and on Russia. Did you
participate in these conferences? Did you hear of them?

FRITZSCHE: I did not participate in a single one of these conferences. I
heard of them for the first time here in the courtroom.

DR. FRITZ: Now, in case no plans for an attack were discussed in these
conferences, was there any talk at all about war or the possibility of
war?

FRITZSCHE: No; but the danger of war was mentioned as early as 1933—the
danger of war due to the one-sided disarmament of one state in the midst
of other states which were highly armed. This disproportion between
armament and nonarmament had to be considered as enticing an attack.

German propaganda after 1933 underlined this consideration and this
contention as one of the main reasons, first, for the demand for
disarmament of the other powers and afterwards for the German demand for
equality of armament. That seemed completely logical to me. But never
was the danger of war mentioned without, at the same time, making a
reference to the German will for peace. That seemed to me honest.

In the summer of 1939, when the danger of war became more and more
imminent, I saw Dr. Goebbels more often than ever before. I gave Dr.
Goebbels a number of little memoranda as, so to speak, a contribution
from my field of work, the news service. They were analyses of public
opinion in western countries, and they repeatedly indicated that England
was determined to go to war in case of a conflict with Poland. I recall
that Dr. Goebbels was deeply impressed when I once again gave him one of
these memoranda. He expressed his concern and decided immediately to fly
to Hitler. He said to me, literally, “Believe me, we did not work
successfully for 6 years in order to risk everything in a war now.”

Furthermore, in the summer of 1939, I knew of some serious gaps in
German armament which have already been mentioned in part here in the
courtroom. Therefore I was convinced of the honesty of the peaceful
intentions in Hitler’s policy.

If documents have been submitted during this Trial which indicate that
Hitler secretly thought differently or acted differently, then I am at a
loss to form a judgment, since the documents of the opposite side have
not yet been published. But if it should be, as the documents submitted
here say, I must state that I was deceived about the aims of German
policy.

DR. FRITZ: Mr. President, at the beginning of my case I had stated that
we were unable to produce here the radio speeches of the Defendant
Fritzsche. I tried to obtain them from German radio stations and
succeeded in getting at least a small part from the years 1939 and 1940.
I have selected a few of these speeches which I should like to submit to
the Tribunal as Exhibit Number Fritzsche-1.

To support what the defendant has just said, I should like to quote only
one sentence from the radio speech of Fritzsche of 15 November 1939:

    “The sole reason for war, which a nation that as a whole never
    longs for war, may have at all—the sole reason for war which is
    also morally justifiable is the threat to the existence, to the
    life of that nation.”

And this line emphasized by the Defendant Fritzsche at the beginning of
the war, was adhered to by him during the war as well. As proof of this,
I should like to quote another passage from the same document, from a
radio speech of Fritzsche of 23 July 1940:

    “We Germans have experienced in the course of our history, and
    especially 30 years ago, enough blood and tears and death to
    face things honestly now. We knew what war meant, and therefore
    we did not want war. And because the Führer knows it so well and
    had experienced it himself, he offered on 6 October and 19 July
    to make peace.”

DR. FRITZ: Did you in any way have anything to do with war preparations
of an intellectual or organizational kind?

FRITZSCHE: Not directly, but perhaps indirectly. I demanded the
disarmament of the others, and then equality of armament; and I
advocated the arming (Wehrhaftmachung) of the German people. The
expression “Wehrhaftmachung” is liable to be misunderstood, at any rate,
to be easily misinterpreted. I should like to define it expressly as the
ability to fight in self-defense. The German people were promised again
and again, often by me, that the restoration of military sovereignty
would be for defensive purposes only.

DR. FRITZ: How and where did you propagate this idea?

FRITZSCHE: In the modest sphere of my weekly radio speeches, while
making casual remarks. I was a patriot; but I feel myself to be free
from chauvinism, that is, exaggerated nationalism. To me, as a
historian, it was at that time already clear that, especially in the
narrow confines of Europe, the old nationalism was an anachronism and
that it was incompatible with modern communications and weapons. At that
time I believed I saw in Hitler’s doctrine also certain elements for a
new type of mutual understanding among peoples. It was particularly the
constantly repeated thesis that only the nationalism of one people can
understand the nationalism of another people.

Only today have I realized ideologically—but particularly, of course
materially—through the further development of arms, that the time of
nationalism is past, if mankind does not want to commit suicide, and
that the period of internationalism has come, for good or evil.

At that time, however, nationalism was not considered a crime. Everyone
advocated it. It can be seen that it is still advocated today, and I
also advocated it.

DR. FRITZ: Now, the Prosecution points out that before every attack a
press campaign was launched in Germany, the aim of which was to weaken
the victim of a planned attack and to prepare the German people
psychologically for the new drive. Although this is stated by the
Prosecution without as yet actually referring to you personally and even
though later no direct charge is made that you organized these press
campaigns, the Prosecution, nevertheless, stress very strongly your
connection with this practice.

Now, what facts do you have to state about your role in these
journalistic polemics?

FRITZSCHE: First, I can only point out that I described the
propagandistic actions in detail in my affidavit, Document Number
3469-PS, Points 23 to 33, starting with the Rhineland occupation up to
the attack on the Soviet Union. These descriptions also contain
information about the type and extent of my participation in these
actions. Beyond that, I may emphasize that any reference is missing in
the description made in my affidavit as to the question of the right in
each case. All attempts at political justification are lacking. I should
like to emphasize explicitly that in each case, in each action, I
believed I represented a good and just cause. It would be leading too
far if I were to explain that here for each case, inasmuch as many of
these cases have already been discussed here. I assume, or rather I
hope, that the Prosecution will ask questions on this subject for I
assert that, no matter what the facts may have been in the individual
cases, at every moment from the Anschluss of Austria on to the attack on
Russia, information given to me and through me to the German public left
no doubt of the legality or the urgent necessity of the German action;
and I, as the only surviving informer of the German public, consider it
my duty to be available here for any investigation of the correctness of
this statement of mine, which is of especial importance for the German
public.

DR. FRITZ: Some newspaper headlines are mentioned in your affidavit
which are considered typical for the various states of tension prior to
the individual action. What have you to say to that?

FRITZSCHE: The headlines are taken without exception from the
_Völkischer Beobachter_. These headlines were submitted to me and, of
course, I had to confirm their truth; but I may emphasize that the
_Völkischer Beobachter_ was not typical for the result of my press
policy. The _Völkischer Beobachter_ generally had its own direct
connections to headquarters and to Hitler. Typical products of my press
policy were papers such as the _Deutsche Allgemeine Zeitung_, the
_Münchener Neueste Nachrichten_, and the _Hamburger Fremdenblatt_, to
name only a few.

DR. FRITZ: But the Prosecution is of the opinion that you also incited
to war by your domestic propaganda insofar as you tried to arouse
hostile feelings in the German people toward other peoples of Europe and
the world. In Captain Sprecher’s trial brief it is said, for instance,
that terms like “antagonism against the peoples of the Soviet Union” and
“an atmosphere of senselessness and hatred” were created by you or that
you had incited the Germans to blind hatred. Did you do that?

FRITZSCHE: No, I did not do that. Never did I attempt to arouse hatred
against the English, French, Americans, or Russians, _et cetera_. There
is not a single word of this type in perhaps a thousand speeches which I
made before the microphone. I did speak strongly against governments,
members of governments, governmental systems; but I never preached
hatred generally or attempted to awaken it indirectly as was the
case—and I ask your pardon for my taking an example from the
courtroom—at the moment when a film was presented here and the words
were spoken, “Here you see Germans laughing over hanged Yugoslavs.”
Never did I try to awaken hatred in this general form and I may point
out that for years many anti-National Socialist statements from certain
countries, which were still neutral at that time, remained unanswered.

DR. FRITZ: Did your superiors demand that you mark your propaganda with
the stamp of antagonism or to stimulate hatred?

FRITZSCHE: Yes, that happened frequently, but it was not demanded that
antagonism or hatred should be stirred up against peoples. That was
expressly forbidden because we wanted to win these peoples over to our
side, but again and again I was requested to arouse hatred against
individuals and against systems.

DR. FRITZ: Who requested you to do this?

FRITZSCHE: Dr. Goebbels, Dr. Dietrich, and both of them frequently on
the direct orders of Adolf Hitler. The reproach was repeatedly made that
the German press and the German radio did not arouse hatred at all
against Roosevelt, Churchill, or Stalin but that they made these three
personalities popular as efficient men. For that reason, for years the
German press was forbidden to mention these three names at all unless,
in an individual case, permission was given with exact instructions.

DR. FRITZ: Do you mean to say that you refused the request to change
your propaganda to incite antagonism and to arouse hatred and did not
carry it out?

FRITZSCHE: I should like to outline exactly what I did. When the
reproaches of Dr. Goebbels and Dr. Dietrich accumulated, I had all
caricatures from the first and second World War collected—from England,
the United States of America, France, and a few from Russia. In
addition, I had all anti-German propaganda films which I could lay my
hands on, collected. Then in five to six demonstrations of several hours
each, I presented these caricatures and these films to German
journalists and German radio speakers. I, myself, spoke only 2 or 3
minutes in introduction. It is quite possible that I created hatred
through these showings, but I should like to leave the judgment of this
means of producing hatred in the midst of war to the Tribunal. In any
case, Dr. Goebbels said later that he was dissatisfied and we were
“bunglers.”

I may add one statement. I would have had a means of carrying out my
orders of arousing real hatred, that is, not one means but a whole group
of methods; that would have been, to give only one example, a German
edition of the last two volumes of the Tarzan series, an adventure
series which was very popular in Germany at that time and of which the
last two volumes were strongly anti-German. I need not describe them
here. I never pointed out such early products of anti-German propaganda.
I always deliberately ignored such methods.

DR. FRITZ: If you say that you dispensed with hatred and antagonism in
your propaganda, what means did you use in your propaganda during the
war?

FRITZSCHE: During the war I conducted the propaganda almost exclusively
with the concept of the necessity and the obligation to fight. I
repeatedly painted the results of defeat very dark and systematically I
gave quotations from the press and the radio of the enemy countries. I
quoted repeatedly the enemy demands for unconditional surrender. I used
the expression of the “super-Versailles” frequently and did—I emphasize
that—describe the consequences of a lost war very pessimistically. It
does not behoove me today to make a comparison with reality.

DR. FRITZ: But could you not learn from the broadcasts of the enemy that
the fight of the Allies was not directed against the German people but
only against its leaders? Did you keep that from the German people?

FRITZSCHE: On the contrary, I did not keep it from them, but repeatedly
quoted it. However, I called it “incredible.” For example, I once used
the trick of quoting the wording of a medieval declaration of war in
which it had already been said that a war was declared only on the King
of France but that one wanted to bring freedom to the French people.

THE PRESIDENT: Would that be a convenient time to break off?

      [_The Tribunal adjourned until 27 June 1946 at 1000 hours._]




                    ONE HUNDRED AND SIXTY-FIFTH DAY
                         Thursday, 27 June 1946


                           _Morning Session_

[_The Defendant Fritzsche resumed the stand._]

MARSHAL (Lieutenant Colonel James R. Gifford): If it please the
Tribunal, the report is made that Defendant Ribbentrop is absent.

DR. FRITZ: Mr. President, Gentlemen of the Tribunal, first a very brief
explanation: Yesterday I repeatedly mentioned the Indictment and intend
to do so in the course of the examination. Thereby I mean the
presentation of Fritzsche’s case by Captain Sprecher in the morning
session of 23 January 1946.

Herr Fritzsche, yesterday you spoke of your radio speeches concerning
the Allied propaganda—my last question: Did you attempt to split the
front of the Allies by your propaganda?

FRITZSCHE: Of course I attempted to do that. I elaborated on all
ideological and all practical political contrasts or differences between
the individual Allied nations. I considered that a permissible method of
waging war. At that time I wanted a split between the Allies just as
much as today I wish their unity, since Germany would be the first
victim of any conflict.

DR. FRITZ: Now, you are accused of assisting in establishing Nazi
control throughout Germany. Did you agitate against democracy?

FRITZSCHE: I never agitated against democracy as such. I attacked the
democracy of the 36 parties, the democracy which had prevailed in
Germany previously, the democracy under which even strong groups such as
the two Marxist parties, for example, were powerless. I criticized
foreign democracy only on two points: First, the elements which limited
the basic concept of democracy—I believe it is superfluous and perhaps
it would be misunderstood to enumerate them today. Secondly, I
criticized the demands of the foreign democracies to force their form of
government on us. According to my knowledge and information at that
time, it seemed unjustified to me.

DR. FRITZ: Well, did you consider dictatorship a better form of
government?

FRITZSCHE: I should like to emphasize that at that time, under the
existing conditions and only for a temporary emergency period, I did;
today, of course, no. After the totalitarian form of government has
brought about the catastrophe of the murder of 5 millions, I consider
this form of government wrong even in times of emergency. I believe any
kind of democratic control, even a restricted democratic control, would
have made such a catastrophe impossible.

DR. FRITZ: You are accused, furthermore, of having spread the doctrine
of the “master race.” The Prosecution makes this charge indirectly
against you. How about that?

FRITZSCHE: I never set up or voiced the theory of the “master race.” I
even avoided this term. I expressly prohibited this term being used by
the German press and the German radio when I was in charge of one or the
other. I believe that the term “master race” played a greater role in
the anti-National Socialist propaganda than in Germany proper. I do not
know who invented this term. To my knowledge it was publicly mentioned
only by men like Dr. Ley, for example, men—and I must explain this
frankly and expressly—who were not taken seriously by anyone in this
connection. It is true, however, that this term played a great role,
without being expressed openly, among the SS because of its racial
exclusiveness; but people of intelligence, tact and insight, and with
some knowledge of the world, very carefully avoided the use of this
word.

DR. FRITZ: Mr. President, at this opportunity, I should like to offer an
affidavit to the Tribunal by Dr. Scharping of 17 May 1946. Dr. Scharping
was Government Counsellor in the Propaganda Ministry up to the end. From
this affidavit I shall now quote only one sentence from Page 13. I
quote:

    “In this connection it can be explained that Fritzsche always
    opposed the term ‘the master race.’ He even expressly prohibited
    the use of this word on the radio.”

[_Turning to the defendant._] But the Prosecution has quoted a passage
from one of your radio speeches to prove this assertion.

FRITZSCHE: The quotation is correct, but I ask you just to read it
carefully. The term “master race” is rejected in this quotation for the
Jewish and for the German people. The quotation cannot be misunderstood.

DR. FRITZ: Mr. President, that is in Captain Sprecher’s speech for the
Prosecution, English text, Pages 31 and 32.

[_Turning to the defendant._] But you carried on propaganda not only in
Germany, but also abroad. What was the difference?

FRITZSCHE: In my radio speeches there was no difference. Before the
outbreak of war I made a slight difference in the speeches for Germany
and those for other countries simply because the audience was different,
and because I had to presuppose a different level of knowledge. During
the war my speeches on the Reich German radio were simply transmitted
over the short-wave stations. What was said for Germany or for other
countries could be controlled by both sides. Moreover in the 12 years
during which I spoke on the German radio, I never permitted my speeches
to be translated, since that always involved a differentiation in
emphasis. Written articles can be translated, perhaps official speeches
also, but not rather light and half-improvised chats.

DR. FRITZ: Were your broadcasts abroad criticized internationally?

FRITZSCHE: Yes, very frequently. During the war there was often daily
criticism from some country or other. I had these criticisms collected.
I asked for them as documents, but my application was refused by the
Court. As far as I know, I am not accused of inciting war in these
criticisms.

DR. FRITZ: Now you not only acted as a mouthpiece for propaganda, but
also as an organizer of it. You are accused of having helped to create
an important instrument for the alleged conspiracy. The Prosecution says
that for 13 years you aided in the creation of the propaganda machine
which the conspiracy was able to put to such good use. Did you create
the press organization of the National Socialist State?

FRITZSCHE: No, I did not create this organization nor did I have any
part in its creation. It was created by Dr. Goebbels, Dr. Dietrich, and
Reichsleiter Amann. When, in the winter of 1938, I became head of the
so-called German Press Section, I attempted to loosen the bonds which
had been imposed on the German press. I attempted that in the material
and personnel field. For example, I called back to their work with the
press hundreds of editors of other parties who had been dismissed in
1933 and 1934. Today they will be angry with me. I had the best
intentions at that time. In addition to the official press conferences
which were very strictly controlled, also as far as their records were
concerned, by my superiors, I also arranged the so-called supplementary
conferences in which I met the representatives of the 50 or 60 most
important papers and discussed more freely the possibilities of their
work. I coined the slogan which was often used there: “You may write any
criticism you like in the German papers provided such criticism is not
shown in big headlines but is buried somewhere in the text in an elegant
form.” Very many German journalists made use of this possibility in the
past 12 years. I should be glad if this work, which was hidden work,
would be honored in some way today in the interest of these people who,
in part, returned to their profession as journalists only out of
personal confidence in me. Of course, I must add that the possibility of
criticizing was not unlimited.

DR. FRITZ: Mr. President, on this occasion, with the approval of the
Prosecution, I offer the Tribunal a document as Document Number
Fritzsche-4. It is an excerpt from a letter of the German Lieutenant
General Dittmar, who frequently commented on the military situation on
the German radio during the war and who is in British captivity. The
well-known English radio commentator, Mr. Liddell-Hart, has sent an
excerpt from the letter to the British Prosecution. I should like to
quote briefly this memorandum which was sent to me. May I quote this
passage?

THE PRESIDENT: Yes, you may.

DR. FRITZ: Dittmar writes that the possibility of retaining the critical
attitude in his radio commentary is due primarily to the silent approval
and the protection of Hans Fritzsche, the director of the political
radio. He believes that Fritzsche was a secret opponent of the regime
and that he was glad of the opportunity to have found a commentator who
discreetly expressed ideas which resembled his own and which insidiously
would tend to reduce confidence in the regime.

Following this quotation, there is another quotation from the affidavit
of Dr. Scharping, which I have already submitted as Document Number
Fritzsche-2. It is on Page 11 of this affidavit. I quote:

    “The radio men and the journalists knew Fritzsche’s tolerance
    quite well. It repeatedly happened that, for example, Fritzsche
    at his conference had a copy of the _Völkischer Beobachter_ in
    his hand and commented ironically on an anti-Jewish article. I
    recall that once he expressed his criticism in about the
    following words:

    “‘A Berlin paper’—then he held up the _Völkischer Beobachter_
    so that everyone could see it—‘has once more, in an editorial,
    made more than two blunders. Perhaps the publisher may yet
    succeed in hitting the right tune.’

    “With such ironical remarks, Fritzsche always had the approval
    of his listeners, but there was some danger for him, for
    Goebbels daily read the records of these press conferences.”

Herr Fritzsche, following the statement of Lieutenant General Dittmar,
one question: Did you feel yourself to be an enemy of the system, or how
does General Dittmar come to this statement?

FRITZSCHE: I was not an enemy of the system. It would be ridiculous and
unworthy to try to assert that today. But I was definitely an opponent
of all misuse of the system. The obvious one which I noticed the most,
because it was in my field of work, was whitewashing of news during the
war. The aim of all my news policy was realism, and apparently that is
what General Dittmar means in the part of his statement which has been
read here.

I met General Dittmar in December 1942 or January 1943 at the moment
when the German 6th Army at Stalingrad was already surrounded, but when
this fact was still being kept secret from the German people. Together
with General Dittmar, in face of the prohibition, I publicly announced
the fact that the 6th Army was surrounded at Stalingrad. This caused a
great sensation at the time.

In the following months and years I always defended General Dittmar and
his realistic presentation of the military situation against all
attacks, especially against the attacks of the Party, but also against
the attacks of the Foreign Office, which repeatedly pointed out that
these sober presentations of Dittmar had a bad effect on Germany’s
allies.

In connection with this struggle for realistic news service, later—and
I ask permission to mention this briefly—I waged a desperate battle
against the irresponsible propaganda of miracle weapons. Only 1 year
after Dr. Goebbels had mentioned the future miracle weapons did I
mention a new type of weapon for the first time. Speer has mentioned SS
Standartenführer Berg, who is said to have carried on secret propaganda
for the miracle weapon in connection with the Propaganda Ministry. He
wrote an article in _Das Reich_ which attracted much attention, with the
sensational and very promising heading, “We, the Bearers of Secrets.” I
had to fight against things like that.

Another especially striking example was this: Another member of the SS,
Hernau, wrote, at the moment when the invasion had succeeded, an article
in which he presented the situation as if the evacuation of France had
been a very secret trick of the German Command, which offered the
possibility for a particularly strong counterblow. I prohibited this
article in my field, and I repeatedly had to oppose the irresponsible
rumors which were spread in secret about mysterious weapons. I did so
publicly, and I plainly stated my point of view on the radio against
this propaganda.

On the other hand I may point out that at every moment of the war my
superiors always made well-founded promises to me, first, of some
military offensive which was just being prepared; for instance, a thrust
from East Prussia toward the south, a thrust from Upper Silesia to the
Vistula, a thrust from Alsace toward the north, and so forth. Hand in
hand with these promises, which were thoroughly detailed, were the
political promises which were mentioned briefly yesterday, that is, the
descriptions given by Dr. Goebbels that foreign political negotiations
were in progress with the enemy on one or the other side.

DR. FRITZ: Another question: Who was in charge of press policy?

FRITZSCHE: Reich Press Chief Dr. Dietrich. He gave very specialized
instructions, mostly in a precise wording, the so-called “slogan of the
day of the Reich Press Chief.”

Generally he even gave the wording of the commentaries which were to be
added in the press conference.

For the most part, Dr. Dietrich was at the Führer’s headquarters and
received his instructions directly from Hitler. Dr. Dietrich’s
representatives were Sündermann and Lorenz. The second factor decisive
for German press policy was Reichsleiter Amann who was at the head of
the organization of publishers. The third factor was Dr. Goebbels as
Reich Propaganda Minister. Dietrich and Amann were nominally subordinate
to him; actually, both had the same authority as he had and I always had
to adjust differences or co-ordinate among these three authorities.

DR. FRITZ: Did you create the organization of the journalistic news
service?

FRITZSCHE: Yes, I did create this organization. In principle, it
originated with me. I may refer to my affidavit, 3469-PS, Point 17. I
was in charge of the journalistic news service from about 1934 to 1938.
I was proud of the fact that at the beginning of the war even the enemy
recognized the good functioning of this news machine. However, at that
time I was no longer the head of the so-called news service department.
As an expert I created this organization in peacetime without thinking
of the possibility of using it during war. The conclusion of the
Prosecution that I also determined the contents of the news service is
not correct.

DR. FRITZ: The Prosecution has said that the Propaganda Ministry was the
most fabulous lie factory of all times. What do you have to say about
this?

FRITZSCHE: First, for myself personally, I should like to make the
following quite clear. I state under oath: On really serious questions
of policy and the conduct of war I did not commit a single falsification
and did not consciously use a single lie.

How often I myself became the victim of a falsehood or a lie I cannot
say after the revelations of this Trial. The same is true, as far as I
know, of all my fellow workers, but I do not by any means want to deny
that I and my fellow workers selected news and quotations following a
certain tendency. It is the curse of propaganda during war that one
works only with black and white. Only a few great minds remain
independent. I believe that this painting in black and white is a luxury
which also cannot be afforded any longer.

As to the Propaganda Ministry itself, as such, I must say that I can
only judge of the one-twelfth, that is the one section of which I was in
charge at any time. But to my knowledge it is a mistake to believe that
in the Propaganda Ministry thousands of little lies were hatched out. In
details we worked quite cleanly and honestly, technically even
perfectly. If we had lied on a thousand small things, the enemy would
have been able to deal with us more easily than was the case. But
decisive for such a news machine is not the detail but the final
fundamental basis on which propaganda is built. Decisive is the belief
in the incorruptibility of the leaders of the state, on which every
journalist must rely and this basis is shaken by what has become known
today of mass murders, of senseless atrocities, and it is shaken by the
doubt in the honesty of Hitler’s protestations for peace, the factual
details of which I am not in a position to judge.

DR. FRITZ: In this Trial it has been pointed out that there are no
regulations in international law on the methods of propaganda in war and
peace.

FRITZSCHE: I know very well that international law places no
restrictions on propaganda, especially propaganda during war. I also
know very well that only in a very few individual treaties between
states are there regulations about the use of propaganda; for example in
the German-Polish treaty and in the German-Soviet Union treaty. But in
all my life as a journalist I have emphasized that the lack of
international regulations as to propaganda is no excuse for lies. I
always emphasized the moral responsibility of the journalist and
newsman. I did so long before the war in an international discussion
with Radio Luxembourg but it would lead too far afield to go into that
here.

If last May I did not seek death, one of the reasons for this was my
wish—I wanted to render an account of where, in that system, there were
the pure idealism and the heroic sacrifices of millions, and where there
were lies and the brutality which did not shrink from committing crimes.

DR. FRITZ: Please give us examples of cases wherein you felt you were
deceived.

FRITZSCHE: During this Trial the news was discussed which circulated at
the beginning of the Polish war about the attack on the Gleiwitz radio
station. At that time I firmly believed in the truth of the official
German news. I need say nothing about this case.

Then, in December of last year, here in the prison in Nuremberg, I
realized from a talk with Grand Admiral Raeder that it was actually a
German submarine which sank the _Athenia_. Up to that time I had firmly
believed in the truth of the official German report that there had been
no German submarine in the neighborhood. I have asked my lawyer to pick
out the most caustic statements I made in my radio speeches about the
_Athenia_ case and include them in my document book. They are utterances
which would really speak against me but which, on the other hand, show
that I worked not alone on the basis of the official German news, but
that I also collected the news which supported the official German
version; for example, the fact which was not at first made public and
therefore was suspicious, that the wreck of the _Athenia_, one day after
the catastrophe, was sunk by being shelled by British destroyers, which
is a matter of course in the interest of shipping but which at the time
seemed to me to be an occasion for suspicion. I also used American news
on the same subject. But the most impressive false news of which I was a
victim was given out in the last few days of the war. I must describe it
for the sake of clearing up matters.

In the days when Berlin was surrounded by the Russian Army the people of
Berlin were told that a relief army, the army of General Wenk, was
marching on Berlin; that there was no more fighting on the Western
Front. The news was given out that Ribbentrop had gone to the Western
Front and had concluded a treaty there, and handbills were printed in
Berlin which contained approximately this text: “Soldiers of the Wenk
army, we Berliners know that you are as far as Potsdam. Hurry, come
quickly, help us.” These handbills were printed at a time when the Wenk
army no longer existed and had already been captured. These handbills
were apparently dropped over Berlin inadvertently and were to give the
inhabitants of Berlin new courage. That happened in the days when
Hitler, according to Speer’s testimony, had already told his entourage
that there was no use trying to do anything for the rest of the German
people.

DR. FRITZ: Mr. President, the two radio speeches which the Defendant
Fritzsche has mentioned dealing with the Athenia case are in the
Document Number Fritzsche-1, which I submitted yesterday. I refer only
to the contents of these radio speeches.

[_Turning to the defendant._] Please give examples of untruths which you
knew and which you did not consider lies.

FRITZSCHE: One example is the so-called “V” drive. Colonel Britton, a
British colonel, proclaimed this “V” drive, this “Victory” drive on the
British radio. On the same evening I stood before a German microphone
and said, apparently harmlessly, “We will have a ‘V’ drive; the ‘V’
stands for ‘Victoria.’”

Then Colonel Britton said that I had stolen the “V” from him. I said
that was not the case, that I thought of it first.

DR. FRITZ: If you thought you were operating only with the truth, why
your sharp language, why the prohibition against listening on the radio
to foreign stations?

FRITZSCHE: I have already emphasized in my affidavit that in my opinion
the sharpness of my language was always less than that of my opponents.
The prohibition against listening to foreign radio stations was issued
decidedly against my will. This prohibition was only a hindrance for me
in my discussions with my foreign opponents in the various countries.
Due to this prohibition my enemy was, so to speak, half in shadow; I
could not speak to him officially, but, on the other hand, I knew that
many of my listeners had heard him.

May I mention here that I always advocated a mild judgment on the
violators of this prohibition against listening to foreign radio
stations. Legal authorities often consulted me as an expert. I may
emphasize that, particularly after Stalingrad, I established my own
listening service for the Russian radio in order to learn the names of
German soldiers captured at Stalingrad which were mentioned on the
Russian radio and report them to the relatives, because it seemed cruel
to me to deprive the relatives of such a source of information about the
fate of their people.

Moreover, there was only one alternative with regard to the prohibition
of listening to the radio. That was either to confiscate all radios and
stop the whole German radio system—the Party often demanded this—or
the prohibition against listening to foreign stations, which seemed to
me the lesser of the two evils.

Finally, we were in a war, and the enemy was not too particular in his
methods. I should like to give an example. That was the station Gustav
Siegfried 2, which at the beginning of its work gained listeners in
Germany with stories that I do not want to characterize more precisely
but which caused me to prohibit my own listening station from receiving
this broadcast.

DR. FRITZ: You have been charged with urging a policy of ruthless
exploitation of the occupied territories. Do you acknowledge such a
policy?

FRITZSCHE: No. The aim of all my propaganda work in Europe was, and had
to be, to win over the peoples of Europe to the German cause. Anything
else would have been illogical. All the radio broadcasts in all European
languages, which were made under my direction, had for years only one
aim: That was to win the voluntary co-operation, especially of the
occupied territories, for the fight of the Reich.

DR. FRITZ: Were you of the opinion that the German administration in the
occupied territories recruited voluntary co-operation?

FRITZSCHE: At the beginning, certainly, with one single exception. That
was Koch in the Ukraine. Otherwise, as far as I could see, all
administrations of occupied territories sought this collaboration more
or less skillfully. I saw the gigantic efforts which the Allies made to
interfere with this German collaboration policy, which was very
dangerous for them. I saw that in these efforts the Allies were at first
using their means of propaganda. This alone would not have worked. Then
I saw that they used other means in these efforts, that is, outrages and
sabotage. These latter efforts had great success. Outrages always called
for reprisals and reprisals always called forth new outrages.

I hope I will not be misunderstood, and this is not meant cynically, if
I say the following: I, as a propagandist, considered for example the
murder of Heydrich a minor success. The destruction of Lidice, carried
out by the Germans, however, was a tremendous success for the Allies. In
other words, I always was and had to be an opponent of reprisals of all
kinds.

DR. FRITZ: Did you know of the reprisals? How did you deal with them in
your propaganda?

FRITZSCHE: I learned of Lidice, which I just mentioned, only after
months, because at that time I was at the Eastern Front. I learned—and
this is significant—only of the destruction of the houses of Lidice and
the driving out of the inhabitants. I learned only here in the courtroom
of the killing of a part of the inhabitants. I learned that hostages
were taken, but not that they were killed. The killing of hostages was
made public only in the occupied territories. If shootings occurred
anywhere, I was told that they had been of persons condemned to death on
account of outrages or conspiracy.

The Night and Fog Decree was also unknown to me. On the other hand, I
frequently learned of fines which had been imposed on towns or
districts. In our propaganda, we always referred to the causes of such
reprisals.

DR. FRITZ: And how did you describe the work of the German
administrations in your propaganda?

FRITZSCHE: I always referred to the constructive work which, in spite of
all difficulties and all resistance, was being done in the various
occupied territories, especially and far ahead, the work for the
intensification of agriculture; then that to increase industrial
production. I had references made to the supplying of the occupied
territories with food, often, as I should like to emphasize, from scant
German stocks. I had reports made of the creation of schools, and I
received at times very impressive reports and had them worked on, for
example, on the supplying of cities such as Paris, in spite of sabotage
by the enemy against railroad lines or other supply channels. I had such
reports collected in permanent files and had speeches and whole series
of speeches made on them. There were many such reports. I must emphasize
that, as far as I know, in not a single German-occupied territory was
there an infant mortality of 80 percent, and in none were there fields
lying fallow, and it is simply not true, as the Prosecution said here
once, although in a moment of excitement, that Germany and the Germans
were well fed and happy during the war while the occupied territories
starved. That is not true.

DR. FRITZ: What did you know about bad conditions in the occupied
territories?

FRITZSCHE: Above all, the failure to call on the population for their
own administration and the lack of decisive political concessions to the
countries which administered themselves. Immediately after the French
campaign, I had repeatedly demanded the establishment of a Magna Charta
for Europe, laying down the basic rights of the European peoples. I
prepared many memoranda on this subject which were accepted by Dr.
Goebbels and taken to Hitler; and when in the autumn of 1942 I decided
to return to the Propaganda Ministry, one of the promises which Dr.
Goebbels gave me was that now finally that Magna Charta for Europe would
be proclaimed.

DR. FRITZ: Mr. President, on this occasion I should like to quote a
passage from the Scharping affidavit, Document Number Fritzsche-2, Page
13 of the affidavit:

    “After the occupation of various European countries, Fritzsche
    issued directives for news releases to the effect that the
    peoples of Europe were to form a league of states on the basis
    of equality with Germany. He told me to work out a series of
    speeches to this effect in which this point of view was to play
    the decisive role and which at the same time should give the
    authorities hints for a healthy reconstruction in the occupied
    territories.”

[_Turning to the defendant._] Did you know what has been said here by
the Prosecution about the activity of the Police in the occupied
territories?

FRITZSCHE: No.

DR. FRITZ: At this point I should like to interpolate a question: I have
already asked the witness Paulus about your conduct after you learned of
the Commissar Order. How about that?

FRITZSCHE: I learned of the order to shoot captured Soviet commissars at
the beginning of May 1942 when I came to the 6th Army. I immediately
opposed it. Whether it was carried out or not, I do not know. Field
Marshal Paulus, no doubt, is correct when he said that he had already
prevented in his army the execution of this order. At any rate, I made
it my business to have the order as such rescinded, and I achieved this.
The 6th Army, at my advice, gave certain information to the High Command
of the Wehrmacht or to the Armed Forces Operations Staff. I am
convinced, moreover, that many army leaders acted in the same way as the
leader of the 6th Army and simply did not carry out the order. At any
rate, it was expressly rescinded afterward.

DR. FRITZ: The Prosecution quotes two paragraphs from your radio speech
of 5 July 1941.

Mr. President, that is in the English record of Captain Sprecher, Pages
32 and 33.

[_Turning to the defendant._] The Prosecution concludes from this
presentation that you had agitated for ruthless measures against the
population of the Soviet Union. You are said to have vilified the people
of the Soviet Union.

THE PRESIDENT: We cannot find it here. What is the PS number?

DR. FRITZ: It is in the transcript, Mr. President.

THE PRESIDENT: We have not got the transcript here. We have the document
book. The document book does not contain 32 and 33 pages. It contains
only 32 or 31 and a little bit...

DR. FRITZ: I can give the document number which is 3064-PS, Exhibit
USA-723 and...

THE PRESIDENT: It is Page 14 in our book. Well, did you say 5 July?

DR. FRITZ: 5 July 1941.

THE PRESIDENT: Well, I have got the 7th and 10th of July but not the
5th. What page in the shorthand notes was it? You know it?

DR. FRITZ: On Page 32, Page 33 in the English transcript. I have the
English transcript here.

THE PRESIDENT: Well, you had better read it then.

DR. FRITZ: This quotation from Captain Sprecher’s speech for the
Prosecution reads:

    “Letters from the front, film reporters, propaganda companies
    attached to the German Army wherever it advanced, P. K.
    reporters, and soldiers on leave confirm: In this battle in the
    East it is not one ideology fighting against another, not one
    political system against another, but culture, civilization, and
    human dignity have revolted against devilish principles of an
    underworld.”

FRITZSCHE: I should like to state the following: With this statement I
was neither calling for ruthless measures against the population of the
Soviet Union, nor did I want to vilify the people of the Soviet Union. I
refer to the full text of the speech of 5 July. I do not wish to read
this speech, but I should like permission to sum it up briefly.

DR. FRITZ: Mr. President, in my Document Book 1—I do not know whether
the Tribunal already has it—I have all the radio speeches...

THE PRESIDENT: No, we haven’t got it.

DR. FRITZ: I have all these radio speeches of the Defendant Fritzsche
from which the Prosecution quoted passages against him in my document
book in their full text.

THE PRESIDENT: It has just been handed up to me. What page is it?

DR. FRITZ: Pages 8 to 13, the radio speech of 5 July 1941.

[_Turning to the defendant._] Will you continue?

FRITZSCHE: I ask for permission to sum up the contents very briefly.

I spoke of the reports which the German public received about what
German soldiers had seen in their advance in the Soviet Union,
especially in connection with prisoners in the prisons in various
cities. I did not describe these things once more; I only recalled them
from the reports which had been given out at the time. From them I drew
the conclusion that now one saw how necessary the fight was against a
system under which such atrocities were possible. For the peoples of the
Soviet Union I expressly used words of compassion and sympathy.

DR. FRITZ: In the same connection, and with the same tendency, the
Prosecution then quotes a sentence from a paragraph of your radio speech
of 10 July 1941.

Mr. President, that is in Document Book 1—the speech of 10 July
1941—also in its full text, on Pages 14 to 19.

[_Turning to the defendant._] What do you have to say to this charge?

FRITZSCHE: What I just said becomes even clearer in this quotation, and
in this whole speech. I referred once more to the reports just
mentioned. I also referred to the descriptions coming from foreign
correspondents. I then quite frankly reported Moscow’s attitude toward
these events and I said, quite honestly, “Radio Moscow says that these
atrocities are facts, but it maintains that these atrocities were not
committed by Russians but by Germans.”

In view of this attitude of Moscow, I, so to speak, took the public into
my confidence. I called upon millions of German soldiers as witnesses; I
called upon their mothers and fathers and wives as witnesses. I formally
called as witnesses the inhabitants of the occupied territories in which
Germans were in power at the time, and in which, as I said, they were
subordinated only to the moral laws in their own breasts. Then I drew
the conclusion: These German soldiers cannot have committed the
atrocities which were described by Berlin and Moscow in the same way.

The Prosecution asserted that this attempt to ascribe German atrocities
to the Russians was ridiculous. I do not consider it ridiculous; I
consider it tragic. It shows clearly, as I understand it, the absolute
cleanliness and honesty of the whole German conduct of the war. I still
believe today that murder and violence and Sonderkommandos only clung
like a foreign body, like a boil, to the morally sound body of the
German people and their Armed Forces.

DR. FRITZ: Finally, the Prosecution quotes a passage from your speech of
9 October 1941, another quotation from which was brought out elsewhere.

Mr. President, this is in the Fritzsche Document Book Number 1; the
speech in its full text is on Pages 20 to 25. The quotations of the
Prosecution are summed up in a document in the Fritzsche document book
of the Prosecution. I think the Tribunal can easily compare it.

[_Turning to the defendant._] The Prosecution concludes from this
quotation that you had approved of the policy of the Nazi conspirators
in their ruthless exploitation of the occupied territories. What have
you to say to that?

FRITZSCHE: There is no question of ruthlessness either in the quotation
given by the Prosecution or in the rest of the text of the speech of 9
October 1941. I refer to my affidavit 3469-PS, Paragraph 39, a paragraph
which the Prosecution very fairly quoted in this connection.

In addition, may I once more sum up, very briefly, the sense of this
speech.

That was the time when German soldiers were stationed from the Black Sea
to the Bay of Biscay. I spoke of the possibility of exploiting the
resources of this enormous territory. I said, “The possibilities of this
continent are so considerable that they can cover any need for war and
for peace.” I said, in this connection, that a starving-out by blockade,
such as was attempted in 1914-18, was now out of the question. I spoke
of the possibilities of the organization of Europe which could begin in
the midst of the war...

DR. FRITZ: In the midst of war?

FRITZSCHE: ...in the midst of war, and I meant the organization of
European nations with equal rights. It is beyond all doubt that at that
time I was not thinking of ruthless exploitation of the occupied
territories, but only of winning them over politically and economically
after the storms of war had blown by.

DR. FRITZ: Mr. President, I now come to another subject, so perhaps this
would be a good time to break off.

THE PRESIDENT: Yes.

DR. THOMA: I have a request, Mr. President. I would like to have my
client excused for the rest of the day because I want to talk to him.

THE PRESIDENT: Yes, certainly.

                        [_A recess was taken._]

DR. FRITZ: What did you know about the removal of Jews from occupied
countries?

FRITZSCHE: I did not know anything of their removal, but I heard that
certain individuals were being arrested, Jews and non-Jews.

DR. FRITZ: What did you know about the topic, which we discussed here,
of slave labor?

FRITZSCHE: I knew that millions of foreign workers were working in the
Reich. I did not consider them slaves, for I saw them daily walking
about free on the streets of all the cities.

DR. FRITZ: What did you know about their treatment, about their living
conditions, and their wages?

FRITZSCHE: Reports about these things were sent to me or to my
co-workers from the office of Sauckel and the German Labor Front. From
these reports, among other things, I remember the fact that the foreign
workers were given the same treatment as the German workers in every
respect. I further recall having heard that the initial inferior
treatment accorded to Eastern Workers had been done away with. I
received many reports from listeners complaining about the fact that
foreign workers were allegedly in better position than German workers;
and in this connection, I remember a reference to the fact that the
foreign workers were permitted to send home money in the form of foreign
exchange.

I also talked with foreign workers many times. I did not hear any
special complaints. On the other hand, in the Propaganda Ministry,
through official channels, I heard a great deal about the care given to
foreign workers even along cultural lines. Frequently I was approached
by Sauckel or the German Labor Front—I do not remember which it
was—with the request to have radio broadcasts sent to one or another
group of foreign workers. I was approached also with the request for
turning over receiving sets to camps of foreign workers, _et cetera_.

DR. FRITZ: Did you know that most of them did not come to Germany
voluntarily?

FRITZSCHE: That was exactly what I did not know. Here in this proceeding
it was mentioned that Sauckel in one meeting or another made a statement
about the fact that only a small percentage had come voluntarily. That
was unknown to me.

I did hear the following complaints: First of all, that extravagant
promises were made at the time of recruitment of the foreign workers,
which could not be kept afterward. In the interest of my propaganda I
had objections raised against that through the propaganda department of
my Ministry when I heard about it. Then, I remember having heard
complaints from Poland dealing with the fact that employers were
“pirating” Polish workers from one another.

DR. FRITZ: Sauckel testified that in this connection he co-operated with
the Propaganda Ministry and that he had many discussions with the
Propaganda Ministry. Did you participate in such discussions?

FRITZSCHE: No, I did not participate in these conferences. I thought
that I met Sauckel here for the first time. He reminded me of our
meeting in the spring of 1945 at the home of Dr. Goebbels when some
evening gathering took place.

DR. FRITZ: Did you have anything to do with the propaganda used in the
recruitment of foreign workers in occupied countries?

FRITZSCHE: No.

DR. FRITZ: What did you have to do with the propaganda which was
disseminated in the occupied countries?

FRITZSCHE: This propaganda, as it applied to occupied countries, was not
subordinate to me, not even in the branches of the press or radio. This
propaganda was under the direction and supervision of the local Reich
commissioner, military commander, or governor. However, I did exert
influence on this propaganda in the occupied countries on two, three, or
four occasions when this propaganda in the occupied countries was
contrary to the directives which applied to the Reich. I usually
gathered this from the echo abroad. I remember one special case which
received general attention. A certain man by the name of Friedrich
attacked the Pope over the German radio in Paris. I had this man
Friedrich replaced. That was the extent of my influence.

Dr. Goebbels, however, exerted much more influence on the propaganda in
the occupied countries, especially through his foreign section or his
Foreign Press Department or through his liaison officer to the OKW.

DR. FRITZ: Did you not make any radio broadcasts in the occupied
countries?

FRITZSCHE: Yes, broadcasts of two types. An example of the first type is
as follows: At the time of the occupation, Radio Paris was under German
influence. Despite that, I retained the old German broadcast in the
French language via Radio Stuttgart. I wanted to have it understood
quite specifically that the occupation was an abnormal and a temporary
situation, and anything that was taking place during the period of
occupation did not have anything to do with that part of, let us say,
German-French conversations, which was being carried on by the two
mother countries.

The second example is as follows: It concerns German broadcasts in the
Spanish and Portuguese languages. I had them transmitted through three
stations in southern France, for it was easier to receive these
transmissions in the Pyrenees peninsula. The basis for my work in this
connection was a contract which we had with these stations and the
payment of regular charges. Negotiations for this contract were carried
out through the Foreign Office.

DR. FRITZ: I shall now turn to a different topic. You are accused of
making anti-Semitic statements. Were you anti-Semitic, and in what way
did you participate in anti-Semitic propaganda?

FRITZSCHE: I was not anti-Semitic in the idea of a noisy anti-Semitism.
The Prosecution has asserted that all defendants—that is, including
myself—had shouted, “Germany awake and Judaism shall die.” I will state
under oath that I never raised this cry or one similar. I was not
anti-Semitic in the sense of either the radical theories or methods
beginning with Theodor Fritsch to Julius Streicher.

The Prosecution has stated that even the Defendant Streicher, the main
anti-Jewish agitator of all times, could hardly have excelled Fritzsche
when it came to libels against the Jews. I protest against this
statement. I do not believe that I deserve any such accusation. Never
did I give out any propaganda dealing with ritual murders, cabala, and
the so-called secrets of the Elders of Zion. At all times of my life I
considered them machinations of a rather primitive agitation. For
humanitarian reasons, I regret that I have to make a further statement,
but I cannot refrain from making this statement in the interests of
truth.

My co-workers and I, in the press and on the radio, without exception I
would say, rejected _Der Stürmer_ radically. I personally, during a
period of 13 years of regular newspaper comments, never quoted this
paper. _Der Stürmer_ was not quoted in the German press either. The
editors did not belong to the journalists’ union and the publisher did
not belong to the publishers’ organization during my term of office. How
things were later on, I do not know.

As I have already stated in my affidavit, I tried twice to ban _Der
Stürmer_. However, I did not succeed. Then it was proposed that I censor
_Der Stürmer_. However, I declined the offer. I wanted to prohibit the
publishing of _Der Stürmer_, not just because the mere verbatim
reproduction of a page of the newspaper _Der Stürmer_ was the most
effective anti-German propaganda which ever existed, but I wanted to ban
_Der Stürmer_ simply for reasons of good taste. I wanted to prohibit it
as a source of radicalism against which I fought wherever I met it.

The great secret for the sudden increase in the circulation of _Der
Stürmer_ after 1933 to half a million, already referred to in this
Court, lay in the same cause as the secret of the sudden increase of
such organizations as the SA.

The Party in 1933 had blocked the influx of new members, and a great
many people tried to get in somehow, if not directly with the Party,
then with some organization connected with the Party, such as, perhaps,
the SA. Or they tried to show sympathy with National Socialist ideas by
subscribing to _Der Stürmer_ and displaying it. Therefore, in that
sense, I was not anti-Semitic.

But I was anti-Semitic in this sense: I wanted a restriction of the
predominant influence of Jewry in German politics, economy, and culture,
such as was manifested after the first World War. I wanted a restriction
based on the ratio of Jews to Germans. I proclaimed publicly this view
of mine on occasions, but I did not exploit these views in extensive
systematic propaganda.

Those anti-Semitic statements with which I am charged by the Prosecution
have a different connection. The facts are as follows: After the
outbreak of the war I referred frequently to the fact that Jewish
emigrants immediately after 1933, were the first ones to emphasize that
a war against the National Socialist German State was necessary; for
instance, Emil Ludwig or George Bernhard or the _Pariser Tageblatt_. As
far as I recall, this was the only connection in which I made
anti-Semitic statements of any kind. I cannot say this without asking to
be permitted to emphasize one more point. Only in these proceedings here
did I learn that in the autumn of 1939 there was more at stake than just
one city and a road through the Corridor; that in truth and in fact, a
new partition of Poland had already been prepared at least, and only
here in these proceedings did I learn that Hitler had confirmed in a
dreadful manner the warnings of the Jews against him by an order to
murder them. If I had known both of these things at that time, then I
would have pictured the role of Jewish propaganda before the outbreak of
the war quite differently.

DR. FRITZ: Mr. President, in this connection I should like to refer to
the document which has already been submitted, Document Number
Fritzsche-2, the affidavit by Dr. Scharping, with reference to Pages 9
to 11. This document is found in my Document Book Number 2; however, I
do not know whether this document book has been submitted to the High
Tribunal.

THE PRESIDENT: Yes, it has.

DR. FRITZ: Pages 9 to 11. I refer to the contents of this document.

[_Turning to the defendant._] The Prosecution has quoted a passage from
the book by Müller, dealing with the Propaganda Ministry. According to
this, among other things, it was the task of this Ministry to enlighten
the population about the Jewish question. According to the picture drawn
by the Prosecution, matters stood as though you were the one charged
with the task of this enlightenment; is that correct?

FRITZSCHE: No. The “Jewry” department was a branch of the propaganda
department which carried on this so-called active propaganda in
opposition to the specialized or administrative departments. I never
directed this department of propaganda.

DR. FRITZ: I should like to interpolate a question. The Defendant
Streicher, on 29 April, stated that the Propaganda Ministry published a
_National Socialist Correspondence_ which was sent to _Der Stürmer_ as
well and which contained in each issue several anti-Semitic articles. Is
that true?

FRITZSCHE: No. The _National Socialist Correspondence_ was not published
by the Propaganda Ministry, but by the Reichspressestelle (Reich Press
Office) of the NSDAP; however, I did not have the impression that the
particular policy followed by _Der Stürmer_ took its character from
these articles. On the other hand, _Der Stürmer_ may have published one
or the other article which was given out by the NSK.

DR. FRITZ: The Prosecution quoted a passage from a speech which you made
over the radio on 18 December 1941. This speech will be found in full in
my Document Book Number 1, Pages 26 to 32. In this instance, you said
that the fate of Jewry in Europe had been rather unpleasant and that
this fate in all probability would stretch over to the New World as
well. The Prosecution holds the view that this was a proclamation of
further actions in the persecution of Jews. What can you tell us about
this?

FRITZSCHE: In this quotation, I discussed the unpleasant fate of Jewry
in Europe. According to the things that we know today, this must appear
as though I meant the murder of the Jews. But in this connection, I
should like to state that at that time I did not know about these
murders; therefore I could not have meant it. I did not even mean the
evacuation of Jews, for even this was not carried out in Berlin at least
until a year or two later.

What I meant was simply the elimination of Jews from politics and
economic life. The expression “unpleasant” hints at this; otherwise the
inoffensiveness of this term could not be explained. And now to the
question of why I spoke about the Jews in America in this connection.
The sentence quoted by the Prosecution is inextricably connected with a
communication preceding it, stating that a Jewish National Council had
submitted to President Roosevelt their wish to enter the war. Not even
this association of ideas, which is perhaps understandable now, was used
by me without good reason. The largest part of the speech in question,
perhaps nine-tenths of it, in fact, deals with the investigation
commission set up in the United States to investigate the causes of
Pearl Harbor.

THE PRESIDENT: There are a lot of pages in this.

DR. FRITZ: The Document Book Number 1, Mr. President, Pages 26 to 32.

THE PRESIDENT: Yes; I wanted to know whether first of all we are on Page
31.

DR. FRITZ: He is referring in his statements which he is making now to
the entire contents of the speech, Mr. President. The Prosecution had
quoted only the very last paragraph of this speech.

[_Turning to the defendant.]_ Please continue.

FRITZSCHE: In this polemic address I not only suggested investigating
whether the guards of the U. S. Navy had been careless but I also
advised checking into American politics, as to whether someone might not
have been interested in the outbreak of the war. In this connection, I
recalled that an investigating committee of the American Senate, 20
years after the first World War, had investigated the causes for entry
of the United States in the war in 1917. I said verbatim, “This Senate
committee proved that Wilson, when entering the war, knew that he was
the victim of a few warmongers.” I deplored...

THE PRESIDENT: The investigation committee of the Americans about the
entry into the last war? Isn’t he going rather far back?

DR. FRITZ: Mr. President, I believe that the defendant can stop at this
point. He only wanted to show that the quotation of the last paragraph
cited by the Prosecution in order to incriminate him was, torn from its
contents. That is the fact he wanted to show, Mr. President.

[_Turning to the defendant._] The second quotation used by the
Prosecution is an excerpt from your radio speech of 18 March 1941. The
Prosecution was of the opinion that this was also an incitement for the
persecution of Jews, and they said, further, that it was proof of your
propaganda with the term “master race.”

Mr. President, this speech of 18 March 1941 may be found in my Document
Book Number 1, Pages 2 to 7.

[_Turning to the defendant._] The Prosecution quoted only one paragraph
from this speech. What can you tell us in this connection?

FRITZSCHE: I do not wish to read this quotation. I rather ask that you
read it carefully yourself, and after you have read it you will see that
I completely agreed with Mr. Roosevelt when he said that there was no
master race. I endorsed the correctness of this sentence not only as it
applied to the German people, but to Jewry as well. The Prosecution
concluded from this sentence that it was a justification for acts
committed in Jewish persecutions in the past and that it was a
foreboding of more persecutions to come. I do not understand this
conclusion; it has no basis whatsoever.

THE PRESIDENT: In our copy there is no date at the top of Page 2 of your
Volume I—yes, I see it is in the index. Which page of it is the passage
that the Prosecution quotes?

DR. FRITZ: On Page 5 under Point 5, Mr. President.

THE PRESIDENT: Yes. Very well.

DR. FRITZ: It begins with the words, “But the crown...” and so forth.
That is the quotation used by the Prosecution.

[_Turning to the defendant._] The third quotation used by the
Prosecution is a passage from the speech which you made on 9 October
1941.

Mr. President, the whole speech is to be found in Document Book Number
1, Pages 20 to 25.

[_Turning to the defendant._] The Prosecution quoted only one paragraph
from this speech as well.

In this paragraph, you, Herr Fritzsche, are speaking about a new wave of
international Jewish-democratic-bolshevistic agitation. What can you
tell us about this?

FRITZSCHE: I have very little to say in this connection. This speech was
made in those days of the autumn of 1941 when the Reich Press Chief had
announced that German victory in the East had been decisive. I had
warned the entire German press about taking this slogan without
reservations. I did not believe in this decision which supposedly had
already taken place. I suggested to all German newspapers that they
speak about a prolonged duration of the war. In this speech of mine I
wanted to weaken the impression of the official victory bulletin.
Therefore, in this speech, and perhaps for the first time in Germany, I
mentioned those three factors which, in fact, later on determined the
war in the East against Germany: First of all, the partisans; secondly,
the international help in the way of arms and munitions; and thirdly,
propaganda. This last part alone was quoted by the Prosecution. As I
have already said, this last part is quite in accord with the knowledge
and opinion I held at that time.

DR. FRITZ: The next quotation used by the Prosecution is an extract from
a speech which you made on 8 January 1944.

The complete speech, Mr. President, may be found in my Document Book
Number 1. It is speech Number 7, to be found on Pages 40 to 45.

[_Turning to the defendant._] In this speech you are stating that it was
not a new form of government or a new form of socialism which had
brought about the war, but rather the agitation of Jews and plutocrats
was responsible for this. How did you come to make that statement?

FRITZSCHE: To justify it, I should like to refer here, too, to
everything that I have already said, and beyond that, I should like to
emphasize that this rather heated accusation was not made by me just out
of the blue or just because I wanted to agitate. This is proven by the
context.

If I may be permitted to do so, I should like to state briefly the
connection in this case. The topic of this speech was the differences of
opinion which existed at that time between the Polish Exile Government
in Moscow—rather, in London—and the Soviet Government in Moscow. There
was a matter of territorial demands which they disagreed on, and on this
occasion I quoted the London _Times_ word for word. The London _Times_
said that “the relinquishing of Polish regions, as demanded by Russia,
was only a small and modest price for the absolute and reliable
guarantee to Poland of help through the Soviet Union.” This statement
made by the London Times I used as a matter of course in a polemic
statement in which I said, “Well, if the _Times_ had written in such a
strain in August of 1939, that it was only about a city or a road, then
surely there would not have been any war,” and so forth.

On this occasion I should like to state that all of these quotations,
almost without exception, show only the combination of the concept Jew,
Plutocrat, Bolshevik. The question of race was not the primary one, but
the thing that was primary was the ideological struggle as it seemed, to
my mind, to be taking place.

DR. FRITZ: The next quotations used by the Prosecution are some excerpts
from your speech of 13 January 1945.

Mr. President, this is speech Number 8, contained in full in Document
Book Number 1, to be found on Pages 46 to 51. The Prosecution in this
case is quoting only two paragraphs, one on Page 50 of my document book,
Paragraph 2.

[_Turning to the defendant._] In these passages you mention Jewish
influence on British policies. How could you make those statements? What
were your reasons?

FRITZSCHE: The Prosecution assumes from this quotation that it was the
introduction to further persecution of the Jews and to their complete
extermination. This conclusion, however, is justified neither in the
words nor in the sense nor when seen in the light of the context...

I shall forego giving you in this case a picture of the connections, not
even in a brief summary. It can be gathered when you read the speech in
question.

However, I cannot see where an appeal for the extermination of the Jews
is to be found.

DR. FRITZ: Forming a part of the general crimes against humanity you are
accused of incitive libel against the Jews, the logical result of which
is said to have been further persecutions.

Therefore, I want to ask you about the murder of Jews. Did you know of
Hitler’s decree, as testified by the witness Hoess, a decree according
to which the Jews were to be murdered?

FRITZSCHE: I should like to state under my oath that I did not know of
this order by Hitler. If I had known it, I would not have served that
person who had given this order for another hour. I should like to state
further that evidently this decree, as well as this entire action, was
concealed with specific care from me and my co-workers, because once I
almost discovered its existence.

DR. FRITZ: Did you receive at any time an indication about the killing
of a large number of innocent people?

FRITZSCHE: Yes. In February or March 1942 I received a letter from a
medium-ranking SS leader of the Ukraine. I do not recall this man’s
name. The contents of the letter were to the effect that the author was
the commander of an SS unit, that he had received an order to kill the
Jews and the Ukrainian intelligentsia of his area. Upon receipt of this
order, he had suffered a nervous breakdown and he was now in a hospital.
It seemed to him that a complaint along official channels was quite
impossible for him. He said he did not know me but had confidence in me;
perhaps I could help in some way. He asked me not to mention his name as
he was bound to silence at the cost of his life.

Without much hesitation and immediately upon receipt of this letter I
called Heydrich, the Obergruppenführer, then leader of the RSHA or the
Gestapo. I hardly knew him personally, but he declared himself quite
willing to receive me immediately. I visited him and asked him
pointblank, “Is your SS there for the purpose of committing mass
murders?”

Heydrich was quite indignant at this question, and said that larger or
smaller SS units had been assigned by him for police purposes to various
ministers, Reich commissioners, and so forth. These special details of
SS men had been misused on various occasions, and he thought this might
apply to the unit which had been placed at the disposal of Gauleiter
Koch. He told me that he would have an investigation started
immediately.

Next noon he called me, from headquarters as he said, and let me know
that this action had actually been attempted on the order of Koch. Koch,
for his part, had referred to the Führer. The Führer, however, had not
answered as yet. Heydrich said I would receive further details.

Two days later Heydrich asked me to come and visit him and said Hitler
had expressly declared that he had not given this order; Koch now said
that there was a misunderstanding. I was further told that an
investigation of Koch had been started. At any rate, Heydrich promised
me that this action would not be carried through. I remember
particularly well one sentence which was used in this discussion, words
used by Heydrich: “Believe me, Herr Fritzsche, anyone who has the
reputation of being cruel does not have to be cruel; he can act
humanely.”

Shortly thereafter, I was made a soldier and asked to be sent to the 6th
Army and was sent to the Ukraine.

DR. FRITZ: Did you...

THE PRESIDENT: Wait a minute. I did not understand that last sentence.
Heydrich said, “Believe me, Herr Fritzsche...” and then...

FRITZSCHE: May I repeat: “...anyone who has the reputation of being
cruel does not have to be cruel; he can act humanely.”

THE PRESIDENT: Yes, but then you went on about going to the 6th Army?

FRITZSCHE: Yes, shortly thereafter I became a soldier...

DR. FRITZ: He added, Mr. President, that shortly after this meeting with
Heydrich, he himself, that is the Defendant Fritzsche, became a soldier
and he specifically asked to be detailed to the 6th Army which at that
time was stationed in the Ukraine.

THE PRESIDENT: What was the date of this incident?

FRITZSCHE: February-March 1942.

DR. FRITZ: When you were a soldier in the Ukraine, did you try to check
the statements of Heydrich as to their correctness?

FRITZSCHE: I had no official authority to do this, but as an old
journalist I made investigations on my own, of course.

First of all, I investigated in Kiev, with the local German radio
station. The answer was: Yes, several shootings actually did take place,
specifically after the blowing up of certain blocks of houses in Kiev,
on which occasion many German soldiers lost their lives. However, they
were shootings according to sentences imposed by courts-martial.

Then, for 3 days I traveled in all directions between Kiev and Poltava.
Mostly I traveled alone. I found the population in utmost peace; there
were no signs of terror whatsoever, and by the way, I was received very
well myself.

At Poltava I checked with officers and soldiers. On these occasions as
well, I was told, “Yes, there were some court-martial sentences. The
reason for these sentences was sabotage.”

Then, in Kharkov itself, I visited the SS command stationed there, and I
spoke with the Sturmführer Rexlach. He denied any shooting actions. He
showed me the prison and there were perhaps 50 inmates, no more. I asked
him about camps and he stated that there were none.

Then I visited a Ukrainian family; I questioned a German agricultural
leader at Bielgorod, and I met with the same result in every case: no
shooting actions took place.

I certainly assumed from that that it had been an attempted individual
action which had not been carried through.

DR. FRITZ: Before this letter which the SS leader had sent you, did you
not already have suspicions, perhaps from Allied radio broadcasts to
which you had access?

FRITZSCHE: These radio broadcasts were accessible to me. I had reports
on atrocities specially gathered at that time and selected from the
great number of enemy broadcasts which we received every day, and then I
had these reports investigated and checked.

DR. FRITZ: And who concerned himself with this checking?

FRITZSCHE: The competent specialist, Oberregierungsrat Körber, in charge
of the Schnelldienst office of the Press Department, or one of his
co-workers, or I myself.

DR. FRITZ: Where was this checked?

FRITZSCHE: We inquired of the RSHA, for in most of these reports of
atrocities the SS or Gestapo were mentioned as the ones who had
perpetrated the murders.

DR. FRITZ: At which of the many branches of this office did you inquire?

FRITZSCHE: We inquired at the various competent offices, and I do not
doubt that we inquired of Eichmann, who has been mentioned in these
proceedings here. Apart from that, we inquired of Sturmbannführer
Spengler or his deputy Von Kielpinsky, both of them members of that
office which, at that time or later, was taken over by Ohlendorf who has
also appeared here as a witness. Frequently we inquired of the branch
offices of the Reichssicherheitshauptamt, the so-called state police
control offices as well, especially if there were reports from a special
area.

DR. FRITZ: What were the answers you received?

FRITZSCHE: We always received the answer that the report in question was
either completely wrong and was an invention, or that the report had
this or that legal basis.

Frequently figures and details were reported which in effect were quite
disarming.

DR. FRITZ: Are there any records of this?

FRITZSCHE: Yes. The more important questions and answers were noted and
were even reproduced and sent to the various offices within and outside
the Propaganda Ministry. All the material was collected in the archives
called “Schnelldienst,” for which I applied here and which was granted
to me but not found.

DR. FRITZ: And you just believed these answers?

FRITZSCHE: Yes, I did believe them, for after all this was information
which was given to me by official sources and furthermore I had
experienced on numerous occasions that the authenticity of such reports
from these sources had been proved very drastically.

DR. FRITZ: What do you mean by that?

FRITZSCHE: Perhaps I might give you an example. The first propaganda
action of the war was the report given out by Warsaw about the
destruction of the picture of the “Black Madonna” of Czestochowa. This
report was transmitted around the world. We took German and foreign
journalists to Czestochowa, who could assure themselves that this report
was not true.

But I must be quite honest here and say that I really wanted to cite
another example in reply to this question put by my counsel, another
report which really had its surprising after-effects for me in this
courtroom some 2 or 3 days ago. The British newspaper _News Chronicle_,
on 24 September 1939, printed the report that the German...

THE PRESIDENT: What is the evidential value of the _News Chronicle_ in
1939?

DR. FRITZ: The defendant wants to prove to the High Tribunal that he
found that many reports from abroad, dealing with German atrocities,
actually were false, so that...

THE PRESIDENT: Well, we do not need details about that. No doubt there
were frequent reports which were not accurate. We do not want you to go
into details.

FRITZSCHE: I wanted to prove with just one news item how at that time
something which the world believed could be denied and then, in the
shadow of this denial, quite unnoticed by the German public, something
did take place, such as a larger wave of arrests or a similar matter.

THE PRESIDENT: He can state the facts, but he need not go into detail
about a particular issue of the newspaper.

DR. FRITZ: Was it only once, Herr Fritzsche, that you learned of the
falsehood of such foreign broadcasts?

FRITZSCHE: No, that took place quite frequently.

DR. FRITZ: Please be very brief, Herr Fritzsche.

FRITZSCHE: One of my co-workers gathered the necessary material for an
article entitled, “In 8 Weeks of War 107 Lies.” I should like to say
only one thing about this. The compilation of such false reports given
out by our enemy gave me a sense of moral superiority over that type of
reporting, and this feeling was the basis of my later work, which could
not be explained without this feeling.

DR. FRITZ: Did it not strike you that such false reports occurred only
in the beginning of the war?

FRITZSCHE: No, that thought never occurred to me. The reports were so
numerous in the beginning and I could also notice them in later years.
Some affected me personally.

DR. FRITZ: How far did they affect you personally? Can you sketch it in
a few brief words?

FRITZSCHE: Just one of many statements: An enemy front propaganda
bulletin accused me of the fact that 600,000 Swedish kroner...

THE PRESIDENT: What is he going to now? What is the purpose of this?

DR. FRITZ: He wants to give an example of how a false statement applied
to him personally. He wanted to state that briefly.

THE PRESIDENT: Well, as I said already, there were, no doubt, erroneous
statements made in the foreign press and every press. We cannot
investigate those sorts of matters.

DR. FRITZ: Then I shall pass on to another question.

[_Turning to the defendant._] Did you not, as an experienced journalist
in the news service, have the feeling that where there is smoke there is
fire? Did you not believe that at least something must be true of the
enemy reports about murders and so forth in the areas under German
domination?

FRITZSCHE: Precisely because I was a professional newsman I did not have
this feeling. Again and again I thought—and I repeatedly reminded the
public—of one erroneous bit of reporting of the first World War. I beg
the Tribunal to grant me permission to mention it quite briefly because
it is also a part of the fundamentals of the propaganda which I carried
on.

THE PRESIDENT: No, I have already pointed out that we assume that there
are a variety of errors. We do not want to go into detail.

DR. FRITZ: Then I shall turn to another question.

[_Turning to the defendant._] But surely you knew that the Jews had been
evacuated from the Reich; you must have noticed that they disappeared
from the streets?

FRITZSCHE: Yes, I did notice that even though this occurred very
gradually. Beyond that I heard Dr. Goebbels say on the occasion of a
ministerial conference that as Gauleiter in Berlin he had demanded the
evacuation of Jews.

DR. FRITZ: Where were these Jews taken in your opinion and what were you
told about these things?

FRITZSCHE: Dr. Goebbels told me that they were taken to reservations in
Poland. The suspicion that they were taken to concentration camps, or
that they were even being murdered, never arose.

DR. FRITZ: Did you inquire about these reservations into which the Jews
were allegedly being taken?

FRITZSCHE: Of course I did that. For instance, I learned of various
things from a former co-worker of mine who had been transferred into the
administration of the Government General and who had an administrative
position in the region Biala-Podlaska. He said that the area under his
control had become a Jewish area, and he repeatedly pictured the arrival
and the housing of these transportees. He also mentioned the
difficulties and the employment of Jews as workers or on plantations.
His entire description bore witness to his humane point of view. He told
me that under him the Jews fared better than they had in the Reich.

DR. FRITZ: What was the name of this man?

FRITZSCHE: Oberregierungsrat Hubert Kühl.

DR. FRITZ: Did you hear unfavorable reports about these deported Jews?

FRITZSCHE: Yes. Sturmbannführer Radke of the staff of the Reichsführer
SS reported, perhaps in the winter of 1942, that the mortality rate of
the Jews in the eastern ghettos was abnormally high due to the
changeover from mental work to manual labor. He mentioned there were
even some isolated cases of typhus.

Apart from that, Dr. Tauber, who was head of the section dealing with
Jewish questions in the propaganda department, told me in 1941, if I
remember correctly, that there had been pogroms during the occupation of
Lvov and Kovno, but they were carried out by the local population. He
assured me at the same time that the German authorities had taken steps
against these pogroms. Nevertheless the references to such things caused
me to criticize matters severely, even though these things today look
almost insignificant compared with what we know of today. My criticism
was directed against my superiors, particularly Dr. Goebbels, and also
against co-workers and members of the Gestapo and of the Party. I
referred repeatedly to the legal, political, and moral necessity of
protecting these Jews, who, after all, had been entrusted to our care.

DR. FRITZ: Did you learn anything else about the fate of these Jews?

FRITZSCHE: On several occasions Jews or relatives or friends of Jews
appealed to me because of discrimination or arrests. A large number of
non-Jews also did this as my name had become well-known to the public.
Without exception, I made their pleas my own and I tried to help through
various offices such as the RSHA, through the personnel section of my
Ministry, through individual ministers and Gauleiter, _et cetera_.

DR. FRITZ: Why did you turn to so many different authorities and
offices?

FRITZSCHE: Very many requests were involved, and if my name had appeared
too often at the same office its effectiveness would have been exhausted
very quickly.

DR. FRITZ: Did you on occasion turn down these requests?

FRITZSCHE: No, not in one single instance, and I should like to
emphasize that particularly because a letter addressed to me in this
prison here was not handed over to me but was published in the press. It
was a letter in which a woman asserted that I had turned down a request
for pardon. I remember this case specifically and I should like to
emphasize briefly that in this case I had expressly called on the Reich
Minister of Justice...

THE PRESIDENT: It is sufficient for him to say that he did not turn them
down. We do not want one instance of somebody who wrote to him.

How long are you going to be, Dr. Fritz?

DR. FRITZ: I believe I shall be able to conclude the entire Fritzsche
case tomorrow morning.

Mr. President, I have heard that there is no open session this
afternoon...

THE PRESIDENT: Yes.

DR. FRITZ: ...otherwise I would have been able to conclude the entire
Fritzsche case today. However, I hope to be able to conclude my
examination of the defendant in his own case and that of the witness Von
Schirmeister. I hope that tomorrow noon I shall be able to conclude.

THE PRESIDENT: The Tribunal hopes so too, because, as I have pointed out
to you, we do not want you to go into such elaborate detail. You have
been going, in the opinion of the Tribunal, far too much into detail,
and we want the matter dealt with more generally.

      [_The Tribunal adjourned until 28 June 1946 at 1000 hours._]




                    ONE HUNDRED AND SIXTY-SIXTH DAY
                          Friday, 28 June 1946


                           _Morning Session_

[_The Defendant Fritzsche resumed the stand._]

DR. FRITZ: Mr. President, Gentlemen of the Bench, the Defendant
Fritzsche, toward the end of yesterday morning’s session, testified as
to how he tried to aid persecuted persons, within the scope of his
limited opportunities. In order to conclude this subject, and with the
approval of the Prosecution, I submit Document Number Fritzsche-6, an
affidavit of Count Westarp, which is to be found in my Document Book
Number 2 on Pages 23 to 25, dated 15 June 1946. I beg the Tribunal to
take judicial notice of the contents of this document.

Furthermore, as another piece of evidence, I should like to offer
another affidavit, made by a Frau Krüger, Berlin, which is to be
Document Number Fritzsche-8. This affidavit has not yet been included in
my document book. However, the original was made by Frau Krüger in
German as well as in English and both copies have been affirmed and
sworn to. I should like to refer to the contents of this affidavit,
especially to the last two paragraphs. From the last paragraph but one
we can see that apart from individual cases Frau Krüger has a general
knowledge of the defendant’s activities. And the last paragraph is quite
interesting; it deals with the manner of life led by the Defendant
Fritzsche.

Apart from that, I also refer here to the entire contents of this
article and I ask the High Tribunal to take judicial notice of this
document.

Finally, in this connection, I should like to refer to an affidavit made
by Dr. Scharping which has been frequently quoted, Document Number
Fritzsche-2, which is to be found in the Fritzsche Document Book Number
2, Pages 6 to 15. I refer particularly to Page 13 at the bottom of the
page, and the top of Page 14.

Herr Fritzsche, I should like to put two more general questions to you
on this topic. During the last period of the war, did you not try to
find out something about the final fate of the Jews?

FRITZSCHE: Yes. I made the most of an opportunity to which I will refer
briefly later on. I asked a colleague of Obergruppenführer Glücks, in
Oranienburg-Sachsenhausen, about the Jews. Briefly summarized, his
answer was as follows: The Jews were under the special protection of the
Reichsführer SS who wished to make a political deal with them. He looked
upon them as a kind of hostages and he did not wish a single hair from
their heads to be harmed.

DR. FRITZ: Some of the Prosecution’s Witnesses have asserted during this
Trial that the German public knew about these murders. Now I just want
to ask you, as a journalist who worked in the National Socialist State,
what was, as far as you know, the attitude of the broad mass of the
German people to the Jews? Did the people know about the murder of the
Jews? Please be brief.

FRITZSCHE: Leaving out all those matters which have already been
mentioned at this Trial, I should like to mention only a few
observations which to me seem important. I shall omit the period shortly
after the first World War, which has already been described, during
which certain anti-Semitic feelings were popular in Germany. I should
like to state only that in 1933 at the time of the Jewish boycott, which
was organized by the NSDAP, the sympathies of the German people clearly
turned again in favor of the Jews. For a number of years the Party tried
hard to prevent the public from buying in Jewish stores. Finally they
even had to resort to threats. A profound and decisive factor in this
development was the promulgating of the Nuremberg Laws. As a result of
these the fight against the Jews was taken for the first time out of the
sphere of pure agitation, that is, the kind of agitation from which one
could remain aloof, and shifted to the field of State Police.

At that time a deep feeling of fear ran through the German people, for
now dissension spread even to individual families. At that time many
human tragedies resulted, tragedies which were obvious to many, probably
to everyone, and there was only one justification for these racial laws.
There was only one excuse for them and one explanation; that was the
assertion and the hope: Well, now that the separation of the two peoples
is being carried out, although painfully, there will at last be an end
to the wild and unbridled agitation; and due to this separation there
will be peace where formerly only unrest reigned.

When the Jews were forced to wear the emblem of a star and when, for
instance, in Berlin they were prohibited from occupying seats on
streetcars, the German people openly took sides with the Jews and it
happened again and again that Jews were ostentatiously offered seats. In
this connection I heard several declarations by Dr. Goebbels, who was
extremely bitter about this undesired effect of the marking of the Jews.

I, as a journalist who worked during that period, am firmly convinced
that the German people were unaware of the mass murders of the Jews and
assertions to that effect were considered rumors; and reports which
reached the German people from outside were officially denied again and
again. As these documents are not in my possession, I cannot quote from
memory individual cases of denial; but one case I do remember with
particular clearness. That was the moment when the Russians, after they
recaptured Kharkov, started legal proceedings during which killing by
gas was mentioned for the first time.

I ran to Dr. Goebbels with these reports and asked him about the facts.
He stated he would have the matter investigated and would discuss it
with Himmler and with Hitler. The next day he sent me notice of denial.
This denial was not made public; and the reason stated was that in
German legal proceedings it is necessary to state in a much plainer
manner matters that need clarification. However, Dr. Goebbels explicitly
informed me that the gas vans mentioned in the Russian legal proceeding
were pure invention and that there was no actual proof to support it.

It was not without reason that the people who operated these vans were
put under the ban of strictest secrecy. If the German people had learned
of these mass murders, they would certainly no longer have supported
Hitler. They would probably have sacrificed 5 million for a victory, but
never would the German people have wished to bring about victory by the
murder of 5 million people.

I should like to state further that this murder decree of Hitler’s seems
to me the end of every race theory, every race philosophy, every kind of
race propaganda, for after this catastrophe any further advocacy of race
theory would be equivalent to approval in theory of further murder. An
ideology in the name of which 5 million people were murdered is a theory
which cannot continue to exist.

DR. FRITZ: Now I shall turn to a different topic. You are accused by the
Prosecution of having incited atrocities, and that the results of your
propaganda covered every phase of the conspiracy, including abnormal and
inhuman treatment and behavior. In this connection I shall, therefore,
have to ask you about the whole question of concentration camps.

Did you know that the concentration camps existed?

FRITZSCHE: Yes, the fact of their creation was announced publicly, I
believe in 1933; and the concentration camps were mentioned later in
official communiqués.

DR. FRITZ: What was the purpose of these camps in your opinion at that
time?

FRITZSCHE: As far as I can recollect, the persons to be taken to these
camps were those who could not be restrained from taking an active part
against the new State. It was stated that the reason for the
establishment of these camps was the abnormal internal political
situation prevailing at that time: A weak center party and two strong
extreme parties, one of which had now assumed power. Steps were taken to
put matters on a proper legal basis. Only later was it mentioned that
habitual criminals were also to be brought to the concentration camps to
prevent them from reverting to crime.

DR. FRITZ: Did you know anything about the number of concentration camps
which were established in the course of time?

FRITZSCHE: Before the war I had heard about three camps. During the war
I suspected there were five to six; and the chart of a large number of
camps which was exhibited here, was quite a surprise to me.

DR. FRITZ: Did you know anything about the number of prisoners in these
camps?

FRITZSCHE: Nothing definite. At the beginning of the war, foreign
reports mentioned millions of prisoners. At that time, together with a
few journalists, I asked Obergruppenführer Heydrich to arrange an
interview with members of the local and foreign press in order to
discuss the matter. He did so. As far as I can recollect, he did not
give any definite figures; but rather he compared them with the number
of inmates at the prisons and penitentiaries in former days. This
comparison did not seem to be disquieting. That was in the winter of
1940 or 1941.

DR. FRITZ: Did you not have any doubts as to the accuracy of those
figures?

FRITZSCHE: Not at that time.

DR. FRITZ: Did you know anything about the conditions in the
concentration camps? Did you speak to anyone who had ever been in a
concentration camp?

FRITZSCHE: Yes. Even as early as 1933 or 1934 I spoke to a journalist
who had been interned for a few weeks in the Oranienburg concentration
camp, which was the old Oranienburg camp. He informed me that he himself
had not been tortured but that he had seen and heard how others had been
beaten and how their fingers had deliberately been squeezed in a door.

DR. FRITZ: Did you just accept these reports and do nothing about them?

FRITZSCHE: Quite the contrary! I made quite a row. This journalist—I
believe his name was Stolzenberg, as far as I remember—did not wish to
have his name mentioned. I wrote three letters, one to Dr. Goebbels—and
he informed me that he would look into the matter—another letter to
Frick as Minister of the Interior, and one to Göring as Prussian Prime
Minister.

Senior officials from both these offices rang me up and told me that an
investigation was being carried out. A short time afterwards, I heard
that this old camp Oranienburg had been dissolved and that the commander
had been sentenced to death. This was a report given to me by a Herr Von
Lützow, who was press reporter for Diels or Diehl, who at that time was
chief of the State Police.

DR. FRITZ: After this first successful protest against ill-treatment,
did you receive any further reports about atrocities in concentration
camps?

FRITZSCHE: No. I received no further reports about ill-treatment. On the
contrary, I frequently made individual inquiries of members of the
Gestapo or of the press section of the Reichsführer SS. All of the
individuals whom I asked declared the following: Beastliness in the
concentration camps only occurred in 1933 or at the beginning of 1934 at
the time when these camps were guarded by members of the SA, who had no
profession—that is to say, by those members of the SA who had the whole
day at their disposal, and some of them were far from being the best
type of men. In this connection I was told further that the 30th of June
signified that a purge had taken place. The 30th of June had removed
those Gauleiter and those SA leaders who had abused their power. They
declared finally that the concentration camps were now being guarded by
the SS, who had engaged professional guards, professional administrators
and officials expert in dealing with criminal matters, and prison
control officials. I was told that this would be a guarantee against
abuses.

DR. FRITZ: Did you inquire about certain individuals who were in
concentration camps?

FRITZSCHE: Of course, I inquired about well-known personalities such as
Parson Niemöller or Schuschnigg, also about Leipkins, Hess’ private
secretary who had been arrested; and in each case I received information
which was reassuring.

DR. FRITZ: They, of course, may have been exceptions because they were
well known and were prominent people. Did you not try to speak to other
people who had been in concentration camps?

FRITZSCHE: Yes. In April of 1942 I met a former official of the
Communist Party, whose name was Reintgen. We had been soldiers together
for 6 months; and therefore he reported quite frankly to me, without
keeping anything back. He said that he had been ill-treated in 1933,
having had lashes on his back, but not afterwards. This information
fully coincided with my observations.

DR. FRITZ: Did you yourself visit concentration camps?

FRITZSCHE: No, I have never been inside the compound of a concentration
camp. However, during the winter of 1944-45 I was frequently in the
administration building near the Oranienburg-Sachsenhausen camp. Apart
from that, I spoke to prisoners as often as I was able to do so, if I
happened to see them either on the march or at work.

DR. FRITZ: With whom did you speak at Oranienburg?

FRITZSCHE: With a colleague of Obergruppenführer Glücks and twice also
with him personally. They told me that the foreign reports regarding
cruel treatment were false. They said that the treatment was not only
humane but decidedly good, as after all, the prisoners were valuable
laborers. I spoke at some length about the working hours, for at that
time a rather silly decree had been issued about a general extension of
working hours. The attitude taken by Glücks was very reasonable, namely,
that longer working hours would not necessarily result in greater
output. Therefore the working hours of 8 to 10 hours a day remained as,
before. He did not mention anything about extermination through
overwork. That is something I heard about for the first time in Court.

DR. FRITZ: And how about your questions which you put to the prisoners
direct?

FRITZSCHE: Well, first of all, there was always a guard present, and
quite naturally the prisoners were suspicious; but eventually I always
received positive replies to positive questions. Briefly, the gist of
these replies was always the same, that they had been unjustly arrested.
Their food was really better than in prison and I frequently heard this
phrase: “Well, anyway we are not soldiers here.” The weapons carried by
the guards were only rifles or revolvers; I did not see any truncheons.

DR. FRITZ: Did you not become more and more suspicious about these
concentration camps, after listening to foreign radio reports?

FRITZSCHE: Not for a long time, for the reasons which I gave yesterday.
Reports from English members of Parliament regarding the Buchenwald case
were first mentioned in April 1945. But this case is so very recent that
for brevity’s sake I do not need to describe particulars of the
incidents that occurred in the Ministry of Propaganda.

DR. FRITZ: How can you explain the fact that crimes and ill-treatment of
the worst kind undoubtedly took place in concentration camps?

FRITZSCHE: I am on the horns of a frightful dilemma, since I heard the
first reliable reports about these things here in prison. Only a part of
these terrible conditions, which were found to exist, can be explained
through the stoppage of traffic and communications at the end of the
war. The rest is more than enough. Obviously, the decree for the secret
murder of masses of people had brutalized to a terrible extent those
people who were entrusted with the execution of this decree.

THE PRESIDENT: The Tribunal does not know whether this explanation is of
any value to us as evidence. We have already heard all about this
matter. He has given us his explanation as to why he says he did not
know.

DR. FRITZ: Mr. President, I have but two more questions I should like to
put to the defendant.

Herr Fritzsche, it has been said here in Court that conditions in
concentration camps were generally known to the German people. As a
journalist, will you give us your opinion and the reasons on which it is
based?

THE PRESIDENT: Has he not given us that already?

DR. FRITZ: No, I beg your pardon, Mr. President. He gave his opinion
when it was a question of the ill-treatment and extermination of Jews,
but on the topic of the extermination of Jews, I asked him...

THE PRESIDENT: Well, you are asking him what his opinion as a journalist
was. I do not see that that is of any importance to us.

DR. FRITZ: Mr. President, I should be grateful if you would allow me to
put the question, as this is my last question but one. I expect an
answer from the defendant, an answer which would assist the Tribunal in
arriving at a judgment.

THE PRESIDENT: On what matter do you want his opinion as a journalist?

DR. FRITZ: The Defendant Fritzsche would like to repeat a few statements
such as some made, for instance, by Dr. Goebbels.

THE PRESIDENT: All right, you may ask the question.

[_Turning to the defendant._] Did you understand the question?

FRITZSCHE: I believe a confusion has arisen, inasmuch as I do not wish
to quote Dr. Goebbels on this subject but rather in relation to our last
series of questions which seem to me more important than the question
you have just put to me now.

DR. FRITZ: In any event, I should like you to give me a brief answer to
my question. Shall I repeat the question?

FRITZSCHE: Thank you, no. In this connection I should like to refer
briefly to the statements which I already made about the murders; that
there were many rumors but those rumors were denied. Undoubtedly an iron
ring of silence surrounded these terrible events and the only thing I
observed in the course of my work, and which appears to me to be
important, is that in the RSHA and some of its branches there must have
existed groups who worked systematically with the view of concealing
these atrocities by issuing reassuring statements and denials to the
offices which represented the public.

DR. FRITZ: Now I should like to put a last comprehensive question. In
the course of your examination by me, you made statements about Hitler
and his policies which were entirely different from those you made long
ago in your radio broadcasts, _et cetera_. Can you tell us briefly the
date and the reason for your change of opinion?

FRITZSCHE: I would like to answer this question very precisely. The
first milestone on the road to this realization was not due to the
German defeat, for right or wrong is independent of victory or defeat.
The fact was that Hitler tried to use this defeat for the extermination
of the German people, as Speer has now horribly confirmed and as I was
able to observe during the last phase of the conflict in Berlin when,
through deceit by raising false hopes, boys of 15, 14, 13, and 12 years
of age were equipped with small arms to fight against tanks and called
into battle, boys who otherwise might have been the hope for future
reconstruction. Hitler found escape in death, leaving behind him the
order to keep on fighting. He also left behind him the official report
that he had died in battle.

I learned that he had committed suicide; and thus my last public
statement, on 2 May 1945, was to let everybody know of this suicide, for
I wanted to kill a Hitler legend in the bud.

Then, while in prison, I heard from a fellow prisoner, a German major
named Sforner, that he had been arrested by the Gestapo, that he had
been tortured in order to make him confess, and that in his presence,
his wife had been beaten. That was the second milestone.

The third stage concerned another coprisoner, the world-famous
geographer, General Niedermeier, who proved to me that the reasons given
by Hitler for the attack on Russia were false, at least on one important
point. After he had talked with the interpreter, he could tell me that
in the decisive discussion between Molotov and Ribbentrop in 1941,
Molotov had not put forth any new demands but that, rather, he demanded
that the assurances which had been given in 1939 should be effective.
Therefore, a part of the reasons given—and I stress this point—that
our attack on Russia was to anticipate a Russian attack, was no longer
valid.

The fourth factor was the proof submitted in Court here of the murder of
5 million Jews. I have already spoken about this matter.

I consider it only my duty to testify to still another statement, a
statement which Dr. Goebbels made in my presence on Saturday, 21 April
1945. Dr. Goebbels, who was in a great state of utmost excitement,
speaking about the last decisive break-through of the Russians near
Berlin, said,

    “After all, the German people did not want it otherwise. The
    German people by a great majority decided through a plebiscite
    on the withdrawal from the League of Nations and against a
    policy of yielding and chose, instead, a policy of courage and
    honor; thereby”—concluded Dr. Goebbels—“the German people
    themselves chose the war which they have now lost.”

These were the last words which I heard from Dr. Goebbels and these
words are untrue. I declare under oath: Dr. Goebbels had never
previously given such significance to that plebiscite. Never had he
given it that interpretation. The exact opposite was the case. At the
time of this plebiscite, the German people were explicitly given once
again a solemn assurance of the will for peace on the part of Hitler and
his associates.

Therefore, I am convinced that Hitler and at least some of his
colleagues had deliberately lied to the people on decisive points, right
from the beginning of their political career; and, something that is not
so important to history, I personally felt deceived on these points,
too.

DR. FRITZ: Mr. President, I have no further questions to put to the
Defendant Fritzsche.

THE PRESIDENT: Do any of the defendants’ counsel wish to ask any
questions?

DR. STAHMER: Witness, did you ever hear or ascertain, at the beginning
when the concentration camps were being organized, that in addition to
the regular camps other so-called “wildcat camps” existed which had been
established by the SA leaders without the knowledge of the competent
authorities?

FRITZSCHE: No. I heard nothing about it at that time. I heard about this
distinction in the concentration camps for the first time here in Court.

DR. STAHMER: On the basis of your present-day knowledge, can you assert
whether the abuses which you described occurred in these “wildcat”
concentration camps?

FRITZSCHE: I can give you a very precise answer to that question. These
abuses about which I learned occurred in the old camp Oranienburg, a
camp situated in the Berliner Strasse. I do not know to which category
that camp belonged. However, these abuses were stopped; and I emphasized
in my testimony that, almost immediately after I sent my letter to the
Prussian Prime Minister, I was called in by a ministerial counsellor or
Ministerialdirektor, and I was assured that an investigation would be
made—a promise which was kept—but in any case I do not remember
whether a final report was sent me from this office.

DR. STAHMER: I have no further questions.

DR. KUBUSCHOK: In June 1934 the publication of Von Papen’s Marburg
speech was forbidden. Is it correct to say that from that time onward,
any statement on the part of the Defendant Von Papen could be published
only with the previous approval of the Ministry of Propaganda?

FRITZSCHE: That is correct, and in even a closer sense. Confiscation of
the Marburg speech, as I remember distinctly, was carried out at the
instigation of Berndt, who later became Ministerialdirektor. This man
drew Dr. Goebbels’ attention to the speech. With regard to any other of
Papen’s announcements, the principle was that not even the Ministry of
Propaganda had the right to release them for publication but, rather,
that they had to be forwarded either to the Minister personally or to
the Führer.

DR. KUBUSCHOK: In your testimony you mentioned that you had known the
Defendant Von Papen for some time and that you got to know him when you
visited Turkey. Just when did you visit Turkey?

FRITZSCHE: In January, I believe it was 1944.

DR. KUBUSCHOK: What was the purpose of your visit?

FRITZSCHE: I delivered a speech to the German colony in Istanbul and
Ankara on the occasion of the 30th of January.

DR. KUBUSCHOK: Did Herr Von Papen have anything to do with this speech
and with this festivity?

FRITZSCHE: No, less than nothing. I received an official request from
Berlin to see to it that Herr Von Papen would not ostensibly depart
before the celebration of the 30th of January, as he wanted to do. I did
not attempt to persuade Herr Von Papen to stay and so he left his office
in time to go skiing.

DR. KUBUSCHOK: That is all.

DR. THEODOR KLEFISCH (Counsel for SA): Witness, you just now said that
it had been reported to you that at the end of the year 1933 and at the
beginning of 1934 unemployed SA men were guarding certain concentration
camps and that abuses were probably to be traced back to that fact. I
have but one question: Who reported that to you? Who was the author of
that report?

FRITZSCHE: The then press chief or press expert of Reichsführer SS
Himmler, whose name was Gerhard Ratke.

DR. KLEFISCH: Thank you very much.

DR. FRITZ SAUTER (Counsel for Defendant Funk): Witness, the day before
yesterday you stated that the Defendant Funk was not concerned with
propaganda in the Propaganda Ministry but that in the main he was
concerned with organizational and financial matters. Now I should like
to ask you to answer several questions regarding the activities of the
Defendant Funk in the Propaganda Ministry.

You know, Witness, that at the beginning there was a Press Department of
the Reich Government and that it was a State institution. How long did
this Press Department exist, and what became of it?

FRITZSCHE: It had existed for quite some time, at least up until March
1933, when it was a branch of the Foreign Office. From then on it became
a branch of the Propaganda Ministry, and it had a dual mission to carry
on: First of all to be the Press Department of this Ministry and
secondly, to continue functioning as the Press Department for the Reich
Government.

DR. SAUTER: Witness, can you tell me who, beginning with March of
1933—that is, from the incorporation of the Press Department into the
Propaganda Ministry—was the chief of this Press Department and, for all
practical purposes, was the chief of the press system? Was that Funk or
was it someone else?

FRITZSCHE: No, that was Ministerial Counsellor Jahnke, successor to
Ministerial Director Berndt. This Press Department was then divided into
three sections: German press...

DR. SAUTER: I am not interested in that, Witness, I am interested only
in knowing whether the chief of this department was the Defendant Funk
or whether it is correct to say that he had nothing to do with these
matters.

FRITZSCHE: Nominally, of course, he was the chief, but with the
practical operation he had nothing to do. That was taken care of by Dr.
Goebbels, Hahnke, and Jahnke.

DR. SAUTER: And later Berndt?

FRITZSCHE: Yes.

DR. SAUTER: Witness, I have another question. Who had the management of
the press policy in the Propaganda Ministry? I am still referring to the
State organ. Did the Defendant Funk have anything to do with it, or just
who was it? Who directed the press policy?

FRITZSCHE: At that time Dr. Goebbels himself exercised that function.
Later on it was the Reich Press Chief, Dr. Dietrich.

DR. SAUTER: The Defendant Funk was State Secretary in the Propaganda
Ministry, or at least he had the title of State Secretary. Now, looking
at this matter rather generally, I would be interested in knowing this:
Did he, in fact, have the position of a State Secretary and exercise
authority as such, or did another official exercise the function of
State Secretary as the regular deputy of the Minister?

FRITZSCHE: As a matter of course, naturally, he had the position, the
power, the prestige, and the salary of a State Secretary; but the
practical work was distributed a little differently.

DR. SAUTER: Just how was it handled?

FRITZSCHE: I have already mentioned that. Practically, Funk concerned
himself with organization and finance as they applied to the gigantic
cultural concern which was being developed at that time; whereas the
actual policy was set up by Dr. Goebbels with the chief of his
ministerial office, Hahnke, who was the successor of Funk as State
Secretary.

DR. SAUTER: I have one final question, Witness, which refers to another
topic.

Do you know what Minister Dr. Goebbels, in November of 1938 or later,
said about the Jewish pogroms of 9 November 1938, with regard to
Defendant Funk?

FRITZSCHE: Much later Dr. Goebbels stated in my presence that sometimes
radical measures would just simply have to be taken, for instance, when
Funk had constantly declared that the Jews could not be eliminated from
economic life; but he, Dr. Goebbels, had to prove to Funk that it could
be done by organizing the riots of 8 November.

DR. SAUTER: In this connection did he say anything about the fact that
this Jewish action, for which Dr. Goebbels was responsible, was also
instigated with the purpose of discrediting Dr. Funk and confronting him
with a _fait accompli_? Did he state anything like that?

FRITZSCHE: That was the sense of the answer that I just gave you.

DR. SAUTER: I have no further questions; Mr. President.

DR. WALTER SIEMERS (Counsel for Defendant Raeder): Herr Fritzsche, in
this Court we have heard what grave accusations are made against the
Defendant Raeder because of an article in the newspaper _Völkischer
Beobachter_. The article I refer to is “Churchill Sinks the _Athenia_,”
which was published on 23 October 1939.

Mr. President, this is Document 3260-PS, or Exhibit GB-218.

I should like to put a few questions pertaining to the _Athenia_ case.
Herr Fritzsche, when did the Propaganda Ministry receive the report
about the torpedoing of the _Athenia_, and through what channels?

FRITZSCHE: I cannot give you the date from memory, but I do know that we
received this report by wireless; that is, we listened in to a foreign
broadcast.

DR. SIEMERS: This wireless report came in shortly after the sinking of
the _Athenia_, is that right?

FRITZSCHE: Without doubt.

DR. SIEMERS: Did the Propaganda Ministry get in touch with the High
Command of the Navy in order to learn the details of this matter?

FRITZSCHE: Yes, I personally did that because I happened to have a
liaison officer from the Navy High Command in my office for censorship
advice.

DR. SIEMERS: Whom did you get in touch with in the High Command of the
Navy, and what did you learn?

FRITZSCHE: First of all, I spoke to the officer who was with me, whom I
have just mentioned, Kapitänleutnant Hahn. Then he telephoned, and in
all probability I phoned, too, to the OKM (the High Command of the
Navy). As far as I recall, I spoke to Korvettenkapitän Wolf.

DR. SIEMERS: And what did Korvettenkapitän Wolf tell you?

FRITZSCHE: He told me already at this early stage that no German U-boat
was in the area in question.

DR. SIEMERS: I should like to remind you that the _Athenia_ was sunk on
4 September 1939.

What did the Propaganda Ministry do after the High Command of the Navy
had stated that it was not a German U-boat which had sunk the ship?

FRITZSCHE: Then this report was announced.

DR. SIEMERS: Herr Fritzsche, how did it happen that about 6 to 7 weeks
later the article, “Churchill Sinks the _Athenia_,” appeared, which was
published on 23 October 1939? Shall I show you the article?

FRITZSCHE: Thank you, no. I remember this incident especially well, as I
have checked my memory about it since this case was mentioned again for
the first time here in the Court.

I know that Hitler himself ordered this article to be written, giving
detailed instructions. The order to write the article came through two
different channels: First, through a telephone call by the Reich Press
Chief, Dr. Dietrich; and secondly through a telephone call by Dr.
Goebbels or one of his officials—I am not able to tell you which of the
two. This order was to be transmitted to the _Völkischer Beobachter._

Now we come to the circumstances on account of which I remember the
details. When I told one of my co-workers to inform the _Völkischer
Beobachter_, he came back to me with the report that it would not be
necessary because the _Völkischer Beobachter_ had already heard the
necessary details directly from the Führer’s headquarters.

DR. SIEMERS: When was this order given by Hitler, or rather, Goebbels?

FRITZSCHE: The day before it appeared, I assume.

DR. SIEMERS: Did any office in the High Command of the Navy have any
connection with this article?

FRITZSCHE: According to my knowledge, no.

DR. SIEMERS: Before this article was published, did you speak with
Grossadmiral Raeder about this article, or did you advise him of the
order given by Hitler in this direction?

FRITZSCHE: No, I believe that the High Command of the Navy had no
knowledge of the article at all. The article originated in the manner
that I have just described to you.

DR. SIEMERS: Did you at any time speak with anyone in the High Command
of the Navy, or with Grossadmiral Raeder about this case?

FRITZSCHE: Only here in the prison.

DR. SIEMERS: Herr Fritzsche, is it correct that in September of 1939 the
_Times_ claimed that in Czechoslovakia Germans had murdered 10,000
Czechs at Prague, including the Lord Mayor?

FRITZSCHE: I do not know whether that was published in the Times, but at
any rate it was published in the _News Chronicle_.

DR. SIEMERS: What did the Propaganda Ministry undertake to do thereupon?

FRITZSCHE: German and foreign journalists were taken to Prague. If I am
not mistaken, one of the foreign journalists who went along to Prague on
that trip is present in this courtroom.

DR. SIEMERS: What did these foreign journalists find out?

FRITZSCHE: They had an interview with the Lord Mayor of Prague, who
allegedly had been killed; they traveled about the country, and they
reported accordingly.

DR. SIEMERS: According to that, the report was clearly untrue?

FRITZSCHE: At that time this report was shown to be quite false.
However, I must add that since Monday of this week, since the testimony
given by Herr Von Neurath, it has become quite clear to me that under
cover of this great and effective denial an action of arrests was
actually carried out in Czechoslovakia. I must add this; I have to
clarify this. And if...

THE PRESIDENT: Dr. Siemers, how does this affect Raeder?

DR. SIEMERS: Mr. President, I believe that in a certain way it is a
parallel case to the article in the _Völkischer Beobachter_, which the
Prosecution is stressing for reasons not quite clear to me.

THE PRESIDENT: The Tribunal thinks the evidence is not competent.

DR. SIEMERS: Herr Fritzsche, do you know what Dr. Goebbels’ attitude was
to Grossadmiral Raeder?

FRITZSCHE: From the few statements which Goebbels made about
Grossadmiral Raeder it could be seen that he had an adverse attitude
toward him. His reason, frequently expressed, was Raeder’s negative
attitude toward the Party and the Party’s wishes and his positive
attitude on Church matters, including the protection which he accorded
Navy clergymen who were subject to attacks on the part of the Party.

DR. SIEMERS: Mr. President, I have no further questions.

DR. HORN: Witness, you stated that a General Niedermeier was present at
the conference which took place between Molotov and Ribbentrop. Just
where did you get your information?

FRITZSCHE: There is a mistake contained in your question. I did not say
that General Niedermeier participated in this conference. What I did say
was—and I shall be a little more explicit—that during my imprisonment
I ran into this General Niedermeier who, for weeks or months just before
that time, had shared a cell with the interpreter who had the task of
interpreting the discussion of Molotov and Ribbentrop.

DR. HORN: Did General Niedermeier give you the name of this interpreter?

FRITZSCHE: Without doubt, but I did not try to remember it.

DR. HORN: I have one more question. After the last discussion on 30
August 1939 between the British Ambassador Sir Nevile Henderson and the
then Foreign Minister Von Ribbentrop, in which the conditions for
negotiating with Poland were made public, these conditions were
published the next day in the _Daily Telegraph_; and allegedly this
issue of the paper was recalled. What do you know about this article?

FRITZSCHE: First of all, I should like to correct another error which
has found its way into your question. On the following morning in
question, the _Daily Telegraph_ did not publish the conditions or the
note, but only published a report that during the preceding night the
British Government had been in consultation on the German demands to
Poland, conditions which had been transmitted to them by their
Ambassador in Berlin. Therefore it could be seen from this article—at
any rate, it could not be interpreted in any other way—that these
conditions were known in London.

DR. HORN: Thank you very much.

DR. THOMA: Herr Fritzsche, you stated yesterday that the _Völkischer
Beobachter_ was in direct contact with the Führer and with the Führer’s
headquarters throughout the war. What individual members on the staff of
the _Völkischer Beobachter_ were you referring to?

FRITZSCHE: I was not especially referring to people in the _Völkischer
Beobachter_; I was thinking mainly of people at the Führer’s
headquarters. So, Dr. Dietrich and his delegates made it their business
always to call the _Völkischer Beobachter_ directly.

DR. THOMA: You know that Rosenberg was no longer the chief editor of the
_Völkischer Beobachter_ after 1937?

FRITZSCHE: I am of the conviction that even before that time he held
that position in name only.

DR. THOMA: Witness, can you tell the Court, as far as the so-called
actions of the Party were concerned—for instance the burning of the
books, the boycott in April of 1933, the pogrom in November of 1938—who
the driving force in all of these actions was?

FRITZSCHE: Today I am of the firm conviction that it was Dr. Goebbels.

DR. THOMA: Witness, do you know that Goebbels, whenever Hitler was in
Berlin, always was Hitler’s guest?

FRITZSCHE: That does not hold quite true. Years before the war Dr.
Goebbels saw Hitler, without doubt, only rarely.

DR. THOMA: I have another question. Do you know that Goebbels had a
direct telephone line to Hitler?

FRITZSCHE: That is news to me. This is the first time I heard of it.

THE PRESIDENT: Dr. Thoma, this has nothing to do with Rosenberg, has it,
the fact that Goebbels had a direct line to Hitler?

DR. THOMA: Mr. President, I wanted only to ask Fritzsche by that whether
Rosenberg had the same connection with Hitler as Goebbels.

FRITZSCHE: I do not know what telephone lines Rosenberg had, but I know
and I have heard frequently that Rosenberg seldom visited Hitler.

DR. THOMA: Thank you very much.

THE PRESIDENT: Is there any other defendant’s counsel who wants to ask
questions?

[_There was no response._]

THE PRESIDENT: Then we will recess.

                        [_A recess was taken._]

THE PRESIDENT: Does the Prosecution wish to cross-examine?

GENERAL R. A. RUDENKO (Chief Prosecutor for the U.S.S.R.): I should like
to begin the cross-examination in determining the role which German
propaganda played in the criminal activity of the Hitler Government.
Tell me, do you admit that German propaganda disseminated racial
theories and introduced into the minds of the German people the ideas of
the superiority of the German race—that means, the idea of the “master
race”? Do you admit that?

FRITZSCHE: The question touches upon two problems. May I reply to both
of them? I admit that German propaganda spread the racial theory, but I
deny that German propaganda spread the theory of the “master race.”

GEN. RUDENKO: You do not admit it?

FRITZSCHE: No.

GEN. RUDENKO: Very well. You admit that the German propaganda incited in
the German people racial hatred toward the Jews and propagated the
necessity of their extermination?

FRITZSCHE: Once again two problems are contained in this question. May I
answer to both?

GEN. RUDENKO: I beg your pardon, you do not have to emphasize this. Just
answer the question; if there are two, answer two.

FRITZSCHE: I admit, as I have done in my answer to your first question,
that German propaganda spread the racial theory but I deny most
emphatically that German propaganda had made preparations for, or had
called for, the mass murder of Jews.

GEN. RUDENKO: But you do not deny that German propaganda preached to the
German people racial hatred toward Jews? You do not deny that?

FRITZSCHE: I cannot even affirm that without reserve. That is the reason
why, in my answer to the second question, I made a slight distinction.
German propaganda, and under that I understand official German
propaganda, did not even preach racial hatred. It only spoke about
racial distinctions, and that is something quite different; but I will
admit that there was a certain type of German propaganda which went
beyond that and which did preach the clear-cut and primitive racial
hatred.

GEN. RUDENKO: You will admit that the activity of German propaganda was
also directed against the Church?

FRITZSCHE: No, even that I have to deny.

GEN. RUDENKO: Will you pretend that the German propaganda was not
directed toward the persecution of the Church?

FRITZSCHE: That is exactly what I wanted to say. The official German
propaganda did not persecute the churches. On the other hand, in order
to clear up this point for you, here again there was an unofficial,
illegal propaganda which preached against the Church. However, the State
and its organizations, during the time of the struggle with the Church,
made many utterances and declarations which might have created an
impression as if they had participated in the struggle against the
churches. By this I mean the trials against clergymen which were given
sensational importance.

GEN. RUDENKO: Very well. You will admit that the propaganda conducted by
the Hitlerite Government in connection with the so-called problem of the
expansion of the Lebensraum of Germany, cultivated and developed in the
German nation militaristic tendencies.

FRITZSCHE: I deny that, too, and most emphatically.

GEN. RUDENKO: Do you admit that German propaganda used provocative
methods, lies, and slander in order to camouflage the aggressive plans
of the Hitlerite Government?

FRITZSCHE: Mr. Prosecutor, it is most difficult for me to answer that
question after all I have voluntarily testified to in this courtroom
yesterday. If I am to make the attempt to summarize very briefly, then I
shall have to say this: I maintain that the German propaganda gave the
German nation in the case of every individual action which was carried
out, from the occupation of the Rhineland to the attack against the
Soviet Union, a picture of the events which, among the Germans, must
have created the impression that we were in the right. On the other
hand, however, I myself—and I explained already when this happened—had
recognized that the structure of these arguments had a basis which was
shaky in various respects.

GEN. RUDENKO: That is to say, on the basis of lies and slander?

FRITZSCHE: No. Please let me apologize, but your way of putting it does
not appear to be quite factual enough.

GEN. RUDENKO: You will persist then in denying that German propaganda
used methods of slander and lies; you do deny this?

FRITZSCHE: Yes, certainly, I deny it, based on my thorough knowledge of
German propaganda; and I should like you to permit me to give you a very
brief explanation in this connection.

GEN. RUDENKO: Please, will you give an explanation, but directly, to my
question?

FRITZSCHE: But of course. Looking at it today, it was the misfortune of
the German people that its propaganda, particularly with regard to those
details which can be checked and controlled, was so clean that it was
completely overlooked that in its three basic principles there were
three fundamental mistakes. I cannot be more explicit.

GEN. RUDENKO: What kind of mistakes are you speaking about?

FRITZSCHE: The first, the trust in Adolf Hitler’s humaneness, which was
destroyed by the order to murder 5 million people; the second, the trust
in the ethical purity of the system, which was destroyed by the orders
to apply torture; and the third, the absolute trust in Adolf Hitler’s
peaceful intentions, shaken by what has been brought up in this
courtroom.

GEN. RUDENKO: Well, we shall revert to these questions later when we
speak about your personal participation in the conducting of the German
propaganda. I should like to ask you now the following: Of course you
were aware that in the OKW there was a special section for propaganda,
which was subordinate directly to Defendant Jodl?

FRITZSCHE: That was known to me, but you are mistaken if you are under
the impression that that department was under Defendant Jodl. It was
under the jurisdiction of General Von Wedel and he was succeeded by
Standartenführer Gunter d’Alquen.

GEN. RUDENKO: Very well. I do not wish to deal with this subject any
longer, at the moment. I am interested in something else; what were the
relations between the Ministry of Propaganda and the OKW?

FRITZSCHE: I cannot tell you what they were between the Ministry of
Propaganda and the OKW in general, but I can give you detailed
information about the relationship between the Ministry of Propaganda
and the Propaganda Department of the OKW which you have just mentioned.
A permanent representative from that department worked in the
ministerial office of Dr. Goebbels. He participated daily in the
ministry conferences which I have already mentioned once, he who was
really always to be found in close proximity to Dr. Goebbels.

GEN. RUDENKO: Who gave the propaganda tasks and the directives to the
OKW?

FRITZSCHE: I can only imagine that the propaganda tasks of the OKW were
drawn up according to Dr. Goebbels’ wishes and to the instructions of
the Chief of the OKW, which was Keitel or Jodl.

GEN. RUDENKO: How was the general German propaganda applied with regard
to the propaganda tasks and measures taken by the OKW?

FRITZSCHE: I am afraid I do not quite understand the meaning of your
question.

GEN. RUDENKO: How was the general German propaganda brought into line
with the propaganda measures taken by the OKW?

FRITZSCHE: Very probably it was just fitted into the propaganda measures
adopted by the OKW, because Dr. Goebbels was so strong a personality
that he would not have tolerated any disregard of his propagandist
principles.

GEN. RUDENKO: Very well. I would like to have your answer to the
following question: What relations existed between the Ministry of
Propaganda and the Ministry of Foreign Affairs?

FRITZSCHE: Sometimes relations were a bit tense, but during the later
years of the war a representative from the Foreign Ministry participated
always in the ministry conferences of the Propaganda Ministry.

GEN. RUDENKO: What part did the Ministry of Foreign Affairs play in the
carrying out of propaganda measures especially in connection with the
preparation and execution of aggressive wars?

FRITZSCHE: May I say the following to this: At the very beginning of an
action of war, a representative from the Foreign Office used to appear
with a completed document book, a _White Book_. I know nothing about the
origin of these _White Books_. At any rate, they were not prepared in
the Ministry of Propaganda. In a few cases I later received some
knowledge of their compilation in the Foreign Office.

GEN. RUDENKO: Would it be correct to make the following deduction: The
Ministry of Foreign Affairs participated directly and actively in the
preparation of propaganda tasks and directives; is that correct?

FRITZSCHE: No doubt that is true because the Foreign Minister reserved
for himself the decisive word with reference to propaganda which was
connected with foreign policy or any propaganda which went abroad.

GEN. RUDENKO: Did you have in mind Defendant Ribbentrop when you just
replied and when you spoke about the role of the Foreign Minister?

FRITZSCHE: Of course.

GEN. RUDENKO: Very well. You acknowledge and maintain that Defendant
Ribbentrop personally gave out the propaganda orders for explaining the
attack on the Soviet Union as a preventive war?

FRITZSCHE: That question cannot be answered with “yes” or “no” but with
a very brief description of the facts. The then Foreign Minister Von
Ribbentrop received, in the early morning hours of the day when the
Russian campaign started, the foreign press correspondents and the
German press. He put a _White Book_ before them and he went on to
explain in a speech what the situation was and concluded with the
following emphatic statement:

    “For all these reasons Germany was forced to begin this attack
    against the Soviet Union in order to forestall a Soviet attack.
    I ask you, gentlemen of the press, to please present the facts
    in this manner.”

GEN. RUDENKO: I should like to determine by this that the propaganda
tasks were given by Defendant Ribbentrop himself. Do you admit it?

FRITZSCHE: I beg to apologize, but I have admitted exactly what I have
said. Your last question is a conclusion based on what I have said, and
to that I do not want to agree.

GEN. RUDENKO: However, replying to my previous question you spoke about
the decisive role of Defendant Ribbentrop in questions concerning the
carrying out of the foreign policy propaganda; is that correct?

FRITZSCHE: Perfectly correct.

GEN. RUDENKO: Well. It is enough; let us skip that question. Tell me now
what were the relations between the Ministry of Propaganda and the
so-called Ministry for the Occupied Eastern Territories? Please explain
to me in this connection how these two Ministries collaborated and what
the relations were between them?

FRITZSCHE: There was a permanent liaison officer who was a member both
of the Eastern Ministry and the Ministry of Propaganda; and beyond that,
there was an institution which had been founded by both Ministries
jointly and which was jointly administrated by them. It was the
institution called “Vineta,” which dealt with the entire propaganda in
the East.

GEN. RUDENKO: Yes, I understand. By what order—or who prepared the
propaganda slogans, as you called them in Germany, which were intended
for the occupied territories? Who planned and prepared them?

FRITZSCHE: I cannot tell you under oath, because I am not sure about it,
but it is my assumption that they were developed based on the existing
principles of general propaganda by Dr. Tauber who was mentioned, and
his associates, in this Vineta institute.

GEN. RUDENKO: Very well. But apparently you are aware of the fact and
will confirm that the leading influence of the Ministry of Propaganda
has been maintained in all these measures.

FRITZSCHE: Quite definitely. Indubitably the Ministry of Propaganda had
the superior initiative here and the greater influence.

GEN. RUDENKO: That is clear. Now tell me, what kind of influence did the
Defendant Bormann have on German propaganda? What role did he play in
this respect?

FRITZSCHE: That role was unusually great. I know that it is somewhat
frowned upon when statements are made here about a man who presumably is
dead. In the interests of the historic truth, however, I shall
nevertheless have to tell you the following ...

GEN. RUDENKO: We do not know yet whether Bormann is dead. We know only
that he is not present on the defendants’ bench; but he is, however, one
of the defendants. Go on, please.

FRITZSCHE: The influence of the Defendant Bormann was unusually strong
not only in all the other fields but also in the propaganda sector. It
became apparent in the following:

First, in the general type of Party agitation which I mentioned
yesterday, that of the most radical trend. A teleprint message from
Bormann to Dr. Goebbels with, shall we say, the following contents: I
heard complaints from Party circles regarding this, that, or the other,
would always be the cause of a rapid acceleration of Dr. Goebbels’
entire machinery.

Second—and this is something which I cannot express under oath in other
words—Dr. Goebbels was quite clearly afraid of Martin Bormann. And he
always tried scrupulously to justify in Bormann’s eyes any actions of
his which might have been misinterpreted by radical elements in the
Party.

GEN. RUDENKO: Perhaps you will tell us who else of the defendants who
were not named here during my cross-examination actively participated in
the propaganda activities, and in what way. Maybe you would rather not
tell us anything about the defendants who are present here.

FRITZSCHE: I certainly would rather not, but I shall answer.

GEN. RUDENKO: Yes, please.

FRITZSCHE: By the way, a very favorable influence on propaganda was
exercised by one of the offices of the Defendant Kaltenbrunner. Whether
he was responsible for it in person I do not know, but here are the
facts: During the struggle for realistic news service which I mentioned
yesterday, I repeatedly met with resistance from the Party and the
Foreign Office; but I found the support of a department of the RSHA, the
name of which I have forgotten, most useful. This department used to
issue reports about the general frame of mind or temper of the German
people, and these reports were distributed to various supreme
authorities in the Reich. In these reports showing the mood of the
people there was frequent praise for realistic news, the very thing
which had been combated by the other two parties which I have mentioned.

GEN. RUDENKO: You just mentioned the office of Defendant Kaltenbrunner.
Who else of the defendants could you name?

FRITZSCHE: None of the others played a part in German propaganda.

GEN. RUDENKO: Defendant Hess is not present here, but did he have any
influence or not?

FRITZSCHE: Most unfortunately not.

GEN. RUDENKO: Why do you say “unfortunately”?

FRITZSCHE: During the period when he was still in office, he fulfilled a
very beneficial task. He was, shall we say, the “complaint department”
for all shortcomings in the Party and the State. I wish he could have
continued...

GEN. RUDENKO: Well, there is no use to speak about it in detail. Now,
let us go into the explanation of your personal participation and your
personal role in the field of German propaganda. I should like you to
state exactly what relations you had with Dr. Goebbels. Yesterday you
spoke about it in detail, but here I should like you to state it
briefly.

FRITZSCHE: The briefest formula is this: Personally, little
relationship; officially, in the course of time, more and more
relationship.

GEN. RUDENKO: Yes. Do you know the name of General Field Marshal
Ferdinand Schörner?

FRITZSCHE: Yes, I know the name.

GEN. RUDENKO: I should like to read into the record an extract from his
testimony. Mr. President, I am submitting this document (USSR-472) as
Exhibit USSR-472.

[_Turning to the defendant._] We are going to hand you this document in
a minute. In order to facilitate the reading of it, the paragraphs which
I am going to read here are underlined in red pencil. I am going to read
the first excerpt; will you please follow the text—I quote:

    “Everybody, including myself, was aware that Fritzsche was not
    only a close associate of Goebbels, but was also a favorite of
    his. He gained Goebbels’ sympathy by frequently copying him in
    his political activities and quoting Goebbels in his speeches.
    Goebbels, in his printed and verbal speeches, referred to the
    conclusions and prognoses made by Fritzsche as having the force
    of official declarations.”

Please tell me, Defendant Fritzsche, is that in accordance with reality?

FRITZSCHE: May I ask you which quotation you have been reading, 1, 2, or
3?

GEN. RUDENKO: I have already told you, it is quotation Number 1.

FRITZSCHE: According to my text, the first one says:

    “Everybody, including myself, was aware that Fritzsche was not
    only a close associate of Goebbels, but was also, a favorite of
    his.”

GEN. RUDENKO: Yes, that is quite correct. That is exactly what I quoted.
I am asking you, is that in accordance with reality?

FRITZSCHE: I should not have expressed it like that, and I think it is a
question of taste. This statement...

GEN. RUDENKO: I understand.

FRITZSCHE: Just a moment. I have something to add.

The expression “close associate of Goebbels” is wrong, objectively seen,
and “favorite”—well, I do not think so.

GEN. RUDENKO: Yes, very well. Let us go further.

You enjoyed the complete confidence of Goebbels and you carried out your
duties in the Ministry of Propaganda entrusted with fullest powers. Do
you admit that?

FRITZSCHE: Absolutely.

GEN. RUDENKO: Very well. Thus, enjoying the confidence and disposing of
full powers, in your utterances you fully mirrored the demands of the
Hitler Government which were made tasks of German propaganda; is that
correct?

FRITZSCHE: Yes, to the exact extent which I described yesterday.

GEN. RUDENKO: Now, I should like to read into the record some extracts
from your testimony of 12 September 1945. I am submitting this document
(USSR-474) as Exhibit USSR-474. I am going to read into the record
Excerpt Number 1.

FRITZSCHE: May I have the document?

GEN. RUDENKO: Certainly, it will be handed to you immediately. Will you
please follow my quotation of Excerpt Number 1. It is underlined in red
pencil. I am reading:

    “During a long time I was one of the leaders of German
    propaganda.”

I skip a few lines and further read:

    “I must say that Goebbels valued me as a convinced National
    Socialist and a capable journalist so that I was considered his
    confidential aid in the German propaganda machine.”

Is that correct?

FRITZSCHE: Mr. Prosecutor, that is not correct. I know that I have
signed this report but at the very moment when I signed it in Moscow I
stated:

    “You can do what you like with that record. If you publish it,
    then nobody in Germany will believe it and no intelligent person
    in other countries either because this is not my language.”

I state that not a single one of the questions contained in this report
was put to me in that same form and I go on to declare that not a single
one of the answers in that record was given by me in that form and I
signed it for reasons which I will explain to you in detail if you want
me to.

GEN. RUDENKO: You therefore do not confirm these statements?

FRITZSCHE: No, only the signature is true.

GEN. RUDENKO: All right, let us say only the signature is true.

Well, we want to bear in mind that in this quotation which I just read
and which you deny, it is said that Goebbels valued you as a National
Socialist and a capable journalist and that therefore you were a
trustworthy person in the German propaganda machine. This is the essence
of the quotation; is that right? Do you deny this? Just a minute please.
I am going to remind you...

FRITZSCHE: Yes, General, I admit that, I admit these facts.

GEN. RUDENKO: Well, then the quotation was correct, was it not?

FRITZSCHE: Yes.

GEN. RUDENKO: Well then, what else are we speaking about? That means you
do corroborate this statement?

FRITZSCHE: I am talking about the record which has been put before me in
its entirety.

GEN. RUDENKO: At present I am questioning you with particular reference
to this quotation which I just read into the record. You are not going
to deny it? You admit it?

FRITZSCHE: I will not confirm the quotation but I will confirm once more
the contents which you have just summarized again.

GEN. RUDENKO: Very well. The sense is not different from the actual
quotation, but results from it. I should like to remind you of an
excerpt...

THE PRESIDENT: One moment. What is it you are saying, Defendant? Are you
saying that you did not sign this document or that you did?

FRITZSCHE: Mr. President, I signed the document, although its contents
did not correspond with my own statements.

THE PRESIDENT: Why did you do that?

FRITZSCHE: I gave that signature after very severe solitary confinement
which had lasted for several months; and I wrote that signature because
one of my fellow prisoners, with whom I came into contact once, had told
me that once every month a court was pronouncing sentences based merely
on such records and without interrogation; and I hoped that in this
manner I would at least achieve being sentenced and thus terminate my
confinement.

So as not to be misunderstood I should like to emphasize that no force
was used and that I was treated very humanely, even if my detention was
very severe.

GEN. RUDENKO: Very well. Of course, you never thought, Defendant
Fritzsche, that after all you had done you would be sent to a
sanatorium? It is obvious that you had to land in a prison and a prison
is always a prison. This was just an aside, however.

I should like to ask you about the following: You stated that in 1945
you signed this because of a very strict regime to which you were
subjected; very well—when you arrived in Nuremberg you were
interrogated on 3 November 1945 here in Nuremberg by General Alexandrov;
is that correct?

FRITZSCHE: Yes.

GEN. RUDENKO: So that is correct? Very well. I should like to remind you
of some of your answers. You were put the following question—on 12
November 1945 questions were put to you and you replied. Do you remember
these statements?

You answered, “I have very often been interrogated and I do not know
what statements and testimony are in question now.”

Thereupon, General Alexandrov submitted to you your testimony of 12
September and you answered him, “I am fully aware of this document.”

You were asked, “I should like you to peruse this document. Do you
remember these statements?”

You said, “Of course, there is no doubt about it.”

And further: “Do you corroborate this document, which you perused and
which was signed by you?”

And you replied, “Of course.”

Do you remember these statements which you made in Nuremberg?

FRITZSCHE: In the statement which you have quoted, all those passages
are missing where I stated again and again that the record was put
before me complete and finished for the purpose of obtaining my
signature. I wished to make 20 or 30 alterations. Some of them were
granted but passages were missing wherein I said in Nuremberg that some
of the answers in that protocol contained a certain amount of truth but
that none of them actually do represent my own answers.

GEN. RUDENKO: Very well. I should now like to remind you of an extract
from your statement of 7 January 1946.

Your Honors, this is Document 3469-PS. It is not in my book of documents
as it was submitted by the Counsel for the Defense. I am going to quote
from that document; it is a very short passage.

[_Turning to the defendant._] This is Paragraph 39 of your statement:

    “Once Goebbels tried to coerce me into submitting my texts for
    perusal. I refused this request and explained that usually I
    dictated a short résumé of my speech immediately before my
    broadcast and consequently, so to say, improvised my speeches.
    He said it was all right but on condition that if he would wish
    it, I should at least speak on specific, given themes.”

Is that right?

FRITZSCHE: Yes.

GEN. RUDENKO: Does that not indicate the confidence Goebbels had in you?
Is that not right?

FRITZSCHE: No doubt he had a great deal of confidence in me, and I did
not deny it.

GEN. RUDENKO: Very well. Let us proceed.

In this very same document, which I have just mentioned to you, that is
to say, in your statement of 7 January 1946, in Paragraph 35 there is
the following sentence—I think it was written by your own hand. It was
in reply to some of the questions put by your counsel. You say, “More
and more I became the only official authority in the Ministry in the
field of radio communication.”

Is that right?

FRITZSCHE: Unfortunately I did not hear the end of your question but you
have quoted the passage correctly and I have written it.

GEN. RUDENKO: So, it does correspond to facts?

FRITZSCHE: Yes, absolutely.

GEN. RUDENKO: Well, you therefore will admit that in the German
propaganda machinery you occupied the most prominent position after
Goebbels?

FRITZSCHE: No, my previous answer does not contain such a statement.

GEN. RUDENKO: I am asking you that now.

FRITZSCHE: I will admit that I had a most influential position in German
radio, of which I was the head.

If you now put a new question, asking who held the second position in
the entire set-up of propaganda after Dr. Goebbels, I will reply: Dr.
Dietrich, the State Secretary, or Dr. Naumann, the ...

GEN. RUDENKO: Excuse me just a minute, please. I did not say the second
position; I only said the most influential position. Are you going to
deny this?

FRITZSCHE: I have no objection to your use of the word “influential,”
but it does not change my answer.

GEN. RUDENKO: Very well, “influential position,” if you like. That is
still stronger. Let us proceed, however.

In the same statement of 7 January you wrote—it is contained in
Paragraph 15:

    “During the entire period from 1933 to 1945 the task of the
    ‘German Press Department’ was the supervision of the local press
    and supplying it with directives... More than 2,300 German
    newspapers were thus supervised.”

And then:

    “In the execution of this task given to me by Dr. Goebbels, in
    accordance with instructions of the Ministry of Propaganda, my
    activity encompassed the entire news and information system of
    the German press and radio.”

Is that correct?

FRITZSCHE: I do not know whether you have quoted the last sentence
correctly, but I have certainly fully recognized the first sentences. It
is my affidavit Document 3469-PS. That corresponds word for word with
the truth.

SEN. RUDENKO: Quite correct. Please tell me this: You organized in the
German Press Department, the head of which you were, the Schnelldienst,
the so-called speed service, which supplied the German press with
provocative material. Do you admit that?

FRITZSCHE: If you will eliminate the word “provocative” and replace it
with the word “propaganda” material, then I will admit it.

GEN. RUDENKO: All right. The Tribunal will consider this. We are not
going to argue about it.

Now, the last question from this group of questions: Tell me, were your
broadcasts on the radio, which were presented with “Hans Fritzsche
Speaks,” considered official Government broadcasts?

FRITZSCHE: I explained this subject to you yesterday. Actually, they
were a private work of my own; but the private work, publicly audible,
of a Ministerialdirektor of the Ministry of Propaganda and the head of
the German radio system will, of course, be regarded as semi-official,
though not fully official; and this fact I had to consider, and I did
consider it.

GEN. RUDENKO: All right. Now, I should like again to revert to the
testimony of Ferdinand Schörner, which I have already submitted to the
Tribunal as Exhibit USSR-472. I should like to quote Paragraph Number 2.
Do you find it, Defendant Fritzsche?

FRITZSCHE: Yes.

GEN. RUDENKO: I am going to read it into the record.

THE PRESIDENT: General Rudenko, the Tribunal would like to see the whole
of this document, or at any rate would like to see the questions to
which these are answers.

GEN. RUDENKO: Mr. President, this document has been submitted to you in
full.

THE PRESIDENT: Oh, I see. You mean that what we have in English here are
only the parts that have been translated into English?

GEN. RUDENKO: Yes, that is quite correct. I am going to read into the
record Extract Number 2:

    “I am fully aware that Fritzsche was a prominent collaborator of
    the Ministry of Propaganda and that he was extremely popular in
    National Socialist circles and among the German people. He
    gained great popularity, especially by his weekly war political
    radio commentaries on the international situation. I often heard
    Fritzsche’s broadcasts in peacetime as well as during the war;
    and I perceived his broadcasts, which were filled with fanatical
    devotion to the Führer, as directives from the Party and the
    Government.”

Do you agree with this evaluation?

FRITZSCHE: I cannot raise any objection to this quotation, but beyond
that...

THE PRESIDENT: General Rudenko, is the document sworn?

GEN. RUDENKO: This document was put into official form in accordance
with the processes which are in use in the Soviet Union.

THE PRESIDENT: Where was it taken?

GEN. RUDENKO: In Moscow.

THE PRESIDENT: The man who made the statement—was he free or was he in
prison?

GEN. RUDENKO: He was at the time a prisoner of war.

THE PRESIDENT: Did the man who is alleged to have made the statement
sign it?

GEN. RUDENKO: Of course, it was signed by him.

THE PRESIDENT: Go on.

GEN. RUDENKO: Thank you. And so you...

FRITZSCHE: May I add that it is known to me that on distant battle
fronts or, for example, with German colonies abroad, my radio speeches
were considered, shall we say, as a political compass.

GEN. RUDENKO: Yes, I understand. I should like to put to you another
document which I will ask you to peruse.

Your Honors, I am submitting as Exhibit USSR-471 the testimony of Hans
Voss.

Defendant Fritzsche, do you know this name, Vice Admiral Hans Voss?

FRITZSCHE: I know the name, but not the man personally.

DR. FRITZ: I apologize, Mr. President. It may be that the statement of
General Field Marshal Schörner does not deserve too much attention, but
at any rate I am unable to ascertain from the document the place where
it was taken.

THE PRESIDENT: General Rudenko says that it was taken at Moscow.

DR. FRITZ: But the record, the protocol itself, does not show that; and
then I have noticed also that the photostatic copy which I have here
does not show the signature of the Field Marshal. It just says “signed.”
Later on in the right margin a handwritten signature has been affixed,
but I do not know whether this document is admissible from a legal point
of view.

THE PRESIDENT: You can see the original and compare it.

GEN. RUDENKO: I am speaking about the Document USSR-471, which is a
written statement by Hans Voss. Please look at the Excerpt Number 1,
which is underlined; I quote:

    “Fully devoted to Hitler and the National Socialist Party,
    Fritzsche rendered priceless services in helping to spread
    National Socialism throughout Germany.”

Is that in accordance with reality?

FRITZSCHE: Well, at least I will not object.

GEN. RUDENKO: In other words, you are in accord with it?

FRITZSCHE: As I told you, I do not object, but I do not want to say by
that that I concur.

GEN. RUDENKO: On the other hand, you do not deny this?

FRITZSCHE: No, I say for the third time that I do not raise any
objection.

GEN. RUDENKO: Very well. I should now like to question you regarding
your attitude toward the racial theory. You gave yesterday a detailed
explanation in this connection to your counsel, so that I am going to
put to you only two or three questions, and I should like you to reply
briefly.

Did you agree with this racial theory?

FRITZSCHE: Yes, and precisely to the extent which I described to you
yesterday.

GEN. RUDENKO: All right. In a radio broadcast on 6 April 1940 you spoke
about Poland.

Your Honors, this is Document USSR-496. I am not going to read this
document as I do not want to propagate the views contained in it, but I
should like the defendant to peruse this document.

Please will you look at Excerpt Number 1 of this document. It is
underlined in red pencil. This refers to your evaluation of the Polish
nation. I simply should like to ask you about this speech of yours.

FRITZSCHE: It is impossible for me to recognize a radio speech of mine
when I see an extract of only 20 lines, considering that I have spoken
about a thousand times, as I said yesterday. In that case, you will have
to let me have the full speech so that I can recognize my line of
thought at the time.

GEN. RUDENKO: Did you not examine the document? This is a full text of
your utterance which took place on 6 February 1940 on radio station,
Deutschland Sender.

FRITZSCHE: General, there are 20 lines here. They begin with the words,
“Considerable effort was necessary to...”

GEN. RUDENKO: That is enough, all right. There is no need in further
quoting. That is the document to which I am referring. I am asking you,
is that your speech?

FRITZSCHE: It is quite possible, but if you give me only 20 lines of
that speech, I can only confirm that: At the time when I had seen the
official German documents dealing with the atrocities committed against
Germans in Poland I talked about that with great disgust on the radio,
talked about what I saw in those documents.

THE PRESIDENT: Shall we adjourn now?

GEN. RUDENKO: All right, Mr. President.

DR. THOMA: I ask you to grant leave for Defendant Rosenberg to be absent
from the Court this afternoon because I have an important conference to
hold with him.

THE PRESIDENT: Yes.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

GEN. RUDENKO: Defendant Fritzsche, extracts from your speech dated 5
July 1941 will be handed to you. They concern the opposition which the
German Fascist troops encountered while entering Soviet territory. My
Lord, this Document Number 3064-PS has already been submitted by the
Defense.

Will you look at Paragraph 7, the last paragraph? I do not intend to
read it.

FRITZSCHE: Yes, I have noted it.

GEN. RUDENKO: Very well. Do you admit having used those very
expressions?

FRITZSCHE: Yes, I admit that and I should like to emphasize, without
quoting it, in what connection this statement was made.

GEN. RUDENKO: Very well. I merely want to ask you the following: When,
in your speeches you insult the Polish and Russian peoples by calling
them “subhumans” do you not consider that these are expressions of
misanthropic theories?

FRITZSCHE: Mr. Prosecutor, I should like to state that I never called
the Russian people or the Polish people subhumans.

GEN. RUDENKO: Very well. I do not intend to argue with you; the
documents speak for themselves.

I would like to turn again to the statement of Hans Voss. This is
Document USSR-471. It has already been submitted. Will you pay attention
to Excerpt Number 2? It is underlined. It is just a short excerpt, and I
will read it:

    “...and he”—Fritzsche—“understood how to influence the German
    mind when he tried to convince them that they, the Germans, were
    the superior race and therefore had to rule over other peoples
    as their slaves.”

Does that agree with the facts?

FRITZSCHE: No, it does not agree with the facts; rather, it contradicts
the facts in all points.

GEN. RUDENKO: Let us say it contradicts your assertions.

Very well, I will put another question to you. Do you know the name
Lieutenant General Rainer Stahel, who was the former commander of the
city of Warsaw?

FRITZSCHE: I am not familiar with that name.

GEN. RUDENKO: You are not familiar with that name? Very well. You will
be handed a document.

Mr. President, this is Document USSR-473, and it is the testimony of
Rainer Stahel, dated 15 September 1941. The passage is underlined in
your copy.

I will read the first excerpt:

    “Goebbels and Fritzsche took every measure in order to
    popularize the racial theory among the Germans and to convince
    them that the Germans were a master race and that other peoples,
    as inferior races, must be subordinated to the German ‘master
    race.’

    “In order to convince the Germans of this and to compel them to
    believe in this theory, the Ministry of Propaganda, run by
    Goebbels and Fritzsche, made a large number of films before the
    war and during the war and published books, pamphlets,
    periodicals, and other literature in which the authors attempted
    to prove the ‘superiority’ of the Germans over other nations.

    “It can be said that as a result of the energetic activity of
    Goebbels and Fritzsche the racial theory gained a firm hold on
    the minds of large numbers of the German people. This
    contributed to the fact that during the war the German soldiers
    and officers, having assimilated the teaching of the leaders of
    German propaganda, committed bestial crimes against peaceful
    populations.”

Tell me, did Rainer Stahel correctly describe the part played by you in
the propagation of racial theory?

FRITZSCHE: No, I should like to add that the level of this statement is
even lower than that of the other statements submitted to me. I should
be happy if just one of those people whose testimony has been submitted
to me in this form, could appear here in person in order to testify as
to the documentary basis of his statement.

GEN. RUDENKO: I believe that during the 6 months that the Trial has
lasted, you have heard enough testimony. Well, let us go on.

FRITZSCHE: No, I have to make this observation: I have not been
confronted with any testimony of witnesses dealing with the subject
matter discussed here.

GEN. RUDENKO: You remember, I hope, the testimony of the witness Hoess
regarding the extermination of millions of persons.

[_There was no response._]

GEN. RUDENKO: I say that you, I hope, remember the testimony of Hoess,
the commander of the concentration camp in Auschwitz, concerning the
extermination of millions of people.

FRITZSCHE: I did not forget this testimony, and not for a minute did it
escape my memory.

GEN. RUDENKO: Very well. I merely wanted to remind you. I do not intend
questioning you on this matter. I am passing on to questions connected
with the propaganda regarding the preparation for aggressive war by
Hitler Germany. In order to shorten the cross-examination, I shall quote
a few of your own statements, dated 12 September 1945, which have
already been submitted to the Tribunal as Exhibit USSR-474. Please look
at the second excerpt. It is underlined.

FRITZSCHE: I object to the reading of this quotation in the same way as
I objected to the submission of the entire minutes of the interrogation,
and I refer you to what I testified a few hours ago as to the origin of
this record.

GEN. RUDENKO: You already gave an explanation to the Tribunal, and the
Tribunal will consider your explanation. This document is submitted, and
I intend to cite this part of the testimony. Please follow me—Excerpt
Number 2:

    “In order to justify this aggressive action, Goebbels summoned
    me to him and gave me instructions to conduct a hostile campaign
    against Austria. Among other things he instructed me to dig out
    old documents in the archives which in any way incriminated the
    Austrian Government and to publish them in the press. Goebbels
    stressed that the documents to be published must first of all
    show that the Austrian people wished to unite themselves with
    the German nation and that the Austrians adhering to these ideas
    were being persecuted by the Austrian Government. Furthermore,
    Goebbels said that the German press had to show that the Germans
    living in Austria were being systematically persecuted by the
    Austrian Government which even went to the length of carrying
    out mass reprisals against them.”

And further on:

    “When Germany occupied Czechoslovakia, Denmark, Poland, Belgium,
    Norway, and the Balkan countries, acting on the instructions of
    Goebbels, I organized a similar calumnious propaganda.”

THE PRESIDENT: General Rudenko, surely it would be better to ask him
with reference to one of these paragraphs: Did he say that?—rather than
to put to him the whole document at once.

GEN. RUDENKO: Mr. President, I have only one paragraph left, and I
intended to read it and then to put the question to him.

THE PRESIDENT: I am not objecting to that. I am only suggesting that it
would be better if you put to him each paragraph in turn, and not put
three or four paragraphs all in one question.

GEN. RUDENKO: Very well, Mr. President; I will deal with it in this way.

I am asking you, Defendant Fritzsche, do you admit the paragraph read by
me concerning the Anschluss?

FRITZSCHE: No; and I maintain that that is not what I testified. That
extract contains rather the thoughts which the interrogating Russian
officer entertained in respect to my testimony. After it had been drawn
up, the record was submitted to me for my signature.

THE PRESIDENT: Wait a minute! What do you deny in it? Take the first
paragraph.

FRITZSCHE: Mr. President, I am protesting against everything,
particularly against the expressions applied here which I have never
used. During my interrogations in Moscow I stated exactly the same
things as I stated here in this Trial yesterday, the day before
yesterday and today or as I have set down in my affidavit.

THE PRESIDENT: Take the first paragraph. The first paragraph has just
been read to you: “In order to justify this aggressive action...” Were
you asked any question about that, and did you make any answer?

FRITZSCHE: Yes, indeed. In many interrogations which were held late at
night, I was asked such questions, and to the subjects condensed in this
one question I answered as follows:

I do not recall the date, but when the Austrian action was about to take
place I was summoned to Dr. Goebbels. Dr. Goebbels told me that the
Austrian Government of Schuschnigg had plans of such and such a
nature—they have been described in sufficient detail here—that a
government crisis had developed, that Seyss-Inquart had taken over the
Government, that a call for help had come from Austria, and that now the
march into Austria would take place.

THE PRESIDENT: Are you now telling us what you told the Russian
interrogator, or are you telling us what actually happened in Germany at
the time of the Anschluss?

FRITZSCHE: I am telling what I told the interrogating Russian officer,
and that is exactly what took place in the Propaganda Ministry on the
day in question.

THE PRESIDENT: You are saying, then, that this first paragraph is
entirely made up, are you?

FRITZSCHE: No; I should not like to use the expression “made up,” but I
should like to say—and I beg permission to do so—which parts in this
paragraph are correct. First of all, there is the point that there was a
hostile campaign against the Schuschnigg Government; such a campaign
actually was instigated in the German press; whether at the moment of
his resignation or just before his resignation I do not remember now.

Furthermore, it is correct, as set down in this paragraph, that it was
proposed to show, by quoting individual cases as far as possible, that
under the Schuschnigg Government those who were sympathetic toward
Germany were persecuted. These are the points that are correct.

GEN. RUDENKO: Strictly speaking, this means that you have now
corroborated what I have just read.

FRITZSCHE: No, no, sir. There is an essential difference.

GEN. RUDENKO: From your point of view. But I believe that you will not
deny the fact that you conducted propaganda directed against the
Austrian Government. This is the main point of this question.

FRITZSCHE: I must deny that as well. This propaganda was not conducted
by me, but by my predecessor, as chief of the German Press Department.

GEN. RUDENKO: Do I understand correctly that you deny having
participated personally in this propaganda, but do not deny the fact
that there was such propaganda?

FRITZSCHE: You understand me correctly if by the term “propaganda” in
this case you mean the enumeration of those measures used by the
Schuschnigg Government against German interests as a whole.

GEN. RUDENKO: Very well. I should like to read the following paragraph
of the same testimony which says:

    “When Germany occupied Czechoslovakia, Belgium, Denmark, Poland,
    Norway, and the Balkan countries, acting on the instructions of
    Goebbels, I organized a similar calumnious propaganda. In every
    such case I dug out every old document from the archives which
    incriminated the Governments of these countries as far as
    Germany was concerned, added my commentary to these documents
    and attempted in this way to justify this or that aggressive
    action on the part of Germany.”

Do you also deny this?

FRITZSCHE: Yes, in that form I deny that as well.

GEN. RUDENKO: But you will not deny that propaganda for the purpose of
aggression was conducted against all the countries enumerated in this
testimony?

FRITZSCHE: I contest your last remark. I admit the fact of the
propaganda, and I have described in detail the individual actions and my
participation in them in my affidavit, Document 3469-PS.

GEN. RUDENKO: Very well; I do not intend questioning you further, as
this has been quite adequately explained in your statements dated 7
January 1946, Document 3469-PS, and which, in fact, do not contradict
what has been stated. Is that right?

FRITZSCHE: I see an essential difference. But this Document 3469-PS is
absolutely correct.

GEN. RUDENKO: Very well, I should like as a supplement to this, to read
the testimony of Ferdinand Schörner, which is Document USSR-72 and which
has already been submitted to the Tribunal; I mean Extract Number 3. He
says in his statement, I read:

    “Fritzsche’s political activity in his function as official
    radio commentator, in the same way as the activity of the war
    correspondent, General Dittmar, was subordinated to the main aim
    of National Socialism, the unleashing of the world war against
    democratic countries and the contributing by all possible means
    to the victory of German arms. Fritzsche’s principal method,
    applied during the several years of his activity, consisted in,
    as I later realized, the deliberate deception of the German
    people. I mention that because during the last years we soldiers
    felt this deception especially keenly since in spite of
    Fritzsche’s false lamentations we knew the actual conditions on
    the front and the actual situation. The main guilt of people
    such as Fritzsche is that they did know the actual state of
    things, but despite this, proceeding according to the criminal
    intentions of the Hitler Government, consciously fed the people
    with lies or, to use a German expression, ‘threw sand in their
    eyes.’”

Tell me, Defendant Fritzsche, does this characterization of German
propaganda correspond to the truth?

FRITZSCHE: That is utter nonsense and it happens that I can partly prove
that. Herr Schörner says part of the activity of the war correspondent
General Dittmar was the starting of aggressive wars. General Dittmar
spoke over the radio for the first time in the winter of 1942-43. That
is one point.

The second point is the following: I have never seen Herr Schörner. I do
not know him and I have never spoken to him. I should be very surprised
if he were in a position to judge whether I deliberately or
unconsciously at any time ever said anything that was not true.
However—and this is something I must add—during the last few days in
Berlin I received indirectly, through State Secretary Dr. Naumann, a
report from General Field Marshal Schörner with the instruction that it
was left to my discretion to make use of it. It reported that he was in
Bohemia with an army which was intact and that he could, if he wanted
to, hold this territory for an unlimited period. We in Berlin should not
lose courage; he could even come to our aid. I do not know whether
Schörner actually made this statement but I think it would be worth
while to call General Field Marshal Schörner here as a witness, in order
to ask him on what he based his judgment.

GEN. RUDENKO: The fact that you do not know Ferdinand Schörner does not
disprove this testimony, for you have yourself stated before this
Tribunal that although very many people knew you as an official
representative of the Government, you could, of course, not know
everybody; is that right?

FRITZSCHE: If you will permit me, sir, I should like to call your
attention to something illogical. Even without knowing me, it is very
easy for anyone to give an opinion about the things I said, but it is
impossible for anyone to judge whether I made those statements in good
faith or in bad faith. I am sure that you yourself realize this
distinction.

GEN. RUDENKO: You are speaking again of your personal participation, but
you do not deny the lying character of the German propaganda?

FRITZSCHE: Again I cannot answer “yes” to the question in the way that
you put it. This morning I gave you a basis for questions which can be
put to me. I contributed my share to a historical clarification by
trying to show what was pure idealism and what were false assumptions;
these things are now being confused.

GEN. RUDENKO: I am not putting questions on the basis which you pretend
you gave me, but upon the basis of documents which are at the disposal
of the Prosecution.

Let us go on. I should like to ask you: Did you know the documents about
the “Case Green” against Czechoslovakia, about the documents concerning
the aggression against Poland, the aggression against Yugoslavia—and
about the propaganda which had to be conducted in this respect?

FRITZSCHE: I heard for the first time here the documentary data for Case
Green. But as you are now again trying to tie this up with propaganda
measures, it is very hard for me to keep both of these matters separate.
Perhaps it will serve your purpose if I answer that neither in the case
of Czechoslovakia nor in the case of Poland nor in any other case did I
know about the German attacks until an hour or an hour and a half before
they were announced to the German public.

GEN. RUDENKO: Did you say an hour or an hour and a half?

FRITZSCHE: I do not wish to commit myself to an hour or an hour and a
half. I do recall that in the case of Russia I had advance knowledge
through Dr. Goebbels perhaps 5 or 6 hours beforehand.

GEN. RUDENKO: Very well. You will now be handed Document USSR-493. It is
your radio speech in connection with the aggression against Poland. This
speech was made on 29 August. Its purpose was to explain beforehand the
reasons for the German attack on Poland and it was made on 29 August. I
do not intend reading it, but the gist of this speech is that on 29
August you spoke of a series of unexpected events which were imminent.
Have you acquainted yourself with this document?

FRITZSCHE: Yes, indeed.

GEN. RUDENKO: You do not deny that on 29 August 1939 you made this
speech?

FRITZSCHE: No, I do not deny that. I should just like to refer to the
fact...

GEN. RUDENKO: Excuse me. Please answer my question first and give your
explanations later. This was on 29 August? You do not deny it. I am
asking you, did you yourself believe in these explanations of
unavoidable war with Poland? Did you yourself believe this at that
moment?

FRITZSCHE: Whether at that moment I considered a war unavoidable, that I
am not in a position to tell you. But I am able to tell you one thing: I
did not believe that Germany was to blame. That if this tension should
lead to a war...

GEN. RUDENKO: That is enough.

FRITZSCHE: I ask to be allowed to add...

GEN. RUDENKO: But please be brief.

THE PRESIDENT: General Rudenko, let the man answer.

GEN. RUDENKO: If you please.

FRITZSCHE: At that time it was a matter of great satisfaction to me that
in the weeks that followed I could see from the Soviet press that Soviet
Russia and its Government shared the German opinion of the question of
war guilt in this case.

GEN. RUDENKO: I believe it is not the time to discuss this now nor did I
ask you for explanations on this subject. You did not answer my
question, but let us pass on to another question. On 9 April 1940 you
made a speech concerning the reasons for a possible occupation of
Norway. You will now be handed an extract from this speech.

Mr. President, this is Document Number USSR-496.

You have that document, Defendant Fritzsche. It is Excerpt Number 4.

FRITZSCHE: No, I do not have it. Yes, I have found it. It is Page 4.

GEN. RUDENKO: Very well. Yes, it is Excerpt Number 4. I will read a
short passage:

    “The fact that German soldiers had to carry out their duty
    because the English violated Norwegian neutrality did not end in
    a warlike but in a peaceful action. No one was injured, not a
    single house was destroyed; life took its daily course.”

This was a lie. Do you admit it or will you deny it?

FRITZSCHE: No, that was not a lie, for I had just been in Norway myself
and I had seen these things. And everything will be quite clear if you
will permit me to read the next sentence, which says—the next sentence
reads as follows...

GEN. RUDENKO: Defendant Fritzsche, wait a minute. You will read it
later.

THE PRESIDENT: But, General Rudenko, you must let the man explain. He
wants to read the next sentence in order to explain this sentence.

FRITZSCHE: The next sentence reads:

    “Even there, where Norwegian troops, instigated by the misguided
    former Norwegian Government, put up resistance, the civilian
    population was hardly affected by this, for the Norwegians
    fought outside the cities and villages....”

GEN. RUDENKO: Well. Now I will show you a document, “An Official Report
of the Norwegian Government,” which has already been submitted to the
Tribunal by the French Prosecution as Exhibit RF-72.

Mr. President, in my document book this document is wrongly numbered
Exhibit USSR-78. It is Document 1800-PS and it has been submitted by the
French Prosecution as Exhibit RF-72.

[_Turning to the defendant._] Listen, Defendant Fritzsche, how correctly
you described the situation in Norway; listen what the “Official Report
of the Norwegian Government” says about it. I quote:

    “The German attack on Norway on the 9th of April 1940 brought
    war to Norway for the first time in 126 years. For 2 months war
    raged throughout the country, causing destruction to the amount
    of 250 million kroner. More than 40,000 houses were damaged or
    destroyed and about 1,000 civilians were killed.”

And that describes the situation as it really was. Do you admit that
your speech on 2 May 1940 was full of the usual lies?

FRITZSCHE: No, I do not admit that, but I assert that you, sir, in
submitting this extract, are not taking into consideration the fact that
I, in my introduction, reported that I wanted to describe what I had
seen myself, when I made a journey into the Gulbran valley and which I
remember took me nearly as far as Atta. It does not in any way prove my
description to be incorrect, if, according to the facts ascertained by
the Norwegian Government, such loss and damage actually did occur in
connection with this undertaking.

GEN. RUDENKO: I believe that the Norwegian people and the Norwegian
Government had sufficient experience of the weight of the German
occupation, and the government report states actual facts and not the
sort of facts which you stated in your propaganda. This document has
been submitted in accordance with Article 21 as indisputable evidence,
and I do not intend to argue with you. The Tribunal will take note of
it. I have a few more questions to put to you in connection with a
matter which has already been dealt with in detail here. It is the
_Athenia_ case. I will not question you in detail on this matter, as it
has already been ascertained with sufficient accuracy. I am simply
asking you: Do you admit now that Fascist propaganda gave out to the
public slanderous and false information about the _Athenia_ case?

FRITZSCHE: Whether this was done by Fascist propaganda in Italy, that I
do not know. National Socialist propaganda did it in good faith, as I
have clearly described.

GEN. RUDENKO: I have already been speaking for nearly an hour about what
occurred here and what has been ascertained. Do you agree that this
speech was a slanderous one or do you still deny it?

FRITZSCHE: No, I have already admitted that and I also showed clearly
how these statements came about.

GEN. RUDENKO: Very well. I am interested only in the personal part you
played in this matter. Why did you take such an active part in this
matter, and why were you the first man to spread this slander?

FRITZSCHE: I do not believe that I was the first one to bring this
matter before the public. However, it is a fact that I spoke very
frequently about the case of the _Athenia_, on the basis of official
reports which I believed. I spoke about this case because I happened to
be the very man who, at the beginning of the war, spoke on the radio in
the evenings.

GEN. RUDENKO: Are you trying to assert that the first report on the
_Athenia_ appeared in the _Völkischer Beobachter_ in October, 1939?

FRITZSCHE: I never claimed that.

GEN. RUDENKO: Well. Then I will remind you that you dealt with the
_Athenia_ as early as September 1939; is that right?

FRITZSCHE: Yes, of course, the question of the _Athenia_...

GEN. RUDENKO: And you spoke about it before the report was published in
the _Völkischer Beobachter_?

FRITZSCHE: Many weeks before that, yes.

GEN. RUDENKO: Therefore, you were the first to spread those slanderous
assertions?

FRITZSCHE: No, I cannot confirm that, but rather...

GEN. RUDENKO: Very well. In this connection I will put only one other
question to you. You will not deny that in 1940 you still spread this
version? I will repeat the question. I am asking you, you will not deny
that even in 1940 you continued to propagate this slander?

FRITZSCHE: It is the essence of every form of propaganda that it repeats
good and effective things as frequently and for as long a time as
possible. I have explained already that in December of 1945, here in the
prison only, I heard from Grossadmiral Raeder for the first time that it
was really a German U-boat that had stink the _Athenia_.

GEN. RUDENKO: Very well. I will pass on to a group of questions
regarding your participation in the carrying out of propaganda connected
with the preparation of aggression against the Soviet Union. You assert
that you had no knowledge of the preparation of aggression against the
Soviet Union until 5 o’clock on the morning of 22 June 1941—that is to
say, when the German troops had already entered Soviet territory—and
when you were called by Ribbentrop to the Foreign Office, where a press
conference was being held. Did I correctly understand your testimony?

FRITZSCHE: No. Several hours before that, on the evening of the day
preceding the entry, Dr. Goebbels had called some of the departmental
chiefs of the Ministry to his house at Wannsee and told them these facts
and forbade them to leave or to telephone. That was the first real
knowledge that I had of this fact.

GEN. RUDENKO: Very well. You also claim that you got to know of
Germany’s aggressive aims with regard to the Soviet Union only in 1942,
and this according to your own observations, is that right?

FRITZSCHE: I do not know what you mean by that. I tried this morning to
make it clear that I began to have doubts as to the truth of the
official German reasons given for this attack only when I was in prison.
I explained that this morning. A second point, which I emphasized
earlier in Moscow when I was interrogated, was that I observed in
1942—it may have been in 1941—after the war with the Soviet Union had
broken out, that preparations of all kinds must have been going on for
quite some time before 22 June.

GEN. RUDENKO: I will recall to your memory an excerpt from your
statement, a document which you confirm in full. It is Number 3469-PS.
In Paragraph 42 we read:

    “At the beginning of 1942 I was a soldier in the eastern theater
    of war. I saw the extensive preparations which had been made for
    the occupation and administration of territories extending as
    far as the Crimea. On the basis of my personal observations, I
    came to the conclusion that the war against the Soviet Union had
    been planned a long time before it broke out.”

Is that statement right?

FRITZSCHE: Yes, certainly.

GEN. RUDENKO: Well, then, I have no further questions to put to you
regarding this matter.

I would like to recall to your memory two further documents connected
with the carrying out of propaganda, in view of the preparation of war
and the actual attack against the Soviet Union. I am referring to the
minutes of a conference held by Hitler dated 16 July 1941.

This document, Mr. President, is Number L-221 and has already been
submitted.

[_Turning to the defendant._] This document will be handed to you and I
will quote one or two paragraphs on the first page. I quote:

    “Now it is essential that we do not disclose our aims to the
    whole world. There is also no need for that; the main thing is
    that we ourselves know what we want. But on no account should we
    render our task more difficult by making superfluous
    declarations. Such declarations are superfluous for within the
    reach of our power we can do everything, and what is beyond our
    power we will not be able to do anyway.”

And further:

    “What we tell the world about our motives for our actions must
    be governed by tactical considerations. We must act here in
    exactly the same way as we did in the case of Norway, Denmark,
    Holland, and Belgium. In those cases, too, we did not say
    anything about our aims, and we shall have the prudence to
    adhere to this method in the future.”

Did you have any knowledge of such directives of Hitler?

FRITZSCHE: No, I did not know of any such directive, but the fact that
such statements and directives have been submitted in this courtroom has
made me realize, I have said, that some of the premises of our
propaganda have no foundation.

GEN. RUDENKO: Very well. You also had no knowledge either of the
instructions issued by the OKW and signed by the Defendant Jodl
regarding the carrying out of propaganda in the “Case Barbarossa”?

FRITZSCHE: I cannot say that without seeing these documents; the Case
Barbarossa as such meant nothing to me until this Trial.

GEN. RUDENKO: Mr. President, this is Document Number C-26 and has
already been submitted to the Tribunal. I will deal with it only in
connection with the matter of propaganda. It is Exhibit USSR-477 in your
document book, Mr. President, Document C-26.

[_Turning to the defendant._] I will quote one excerpt, Defendant. These
instructions say:

    “Propaganda directed toward the dismemberment of the Soviet
    Union into single states is not to be used for the time being.
    In the various parts of the Soviet Union German propaganda must
    use that language which is most spoken. But this should not be
    done in such a way that the various propaganda texts might give
    the impression that it is intended to dismember the Soviet Union
    at an early date.”

Were you acquainted with these directives?

FRITZSCHE: I knew neither the document nor the contents of the directive
which you have just read.

GEN. RUDENKO: Yes, but I hope you will not deny that this was the spirit
in which the propaganda was carried on.

FRITZSCHE: No. As far as I could observe, the propaganda which was
carried on in the Soviet Union had just the reverse tendency. It tried
to educate the various nationalities, such as the Ukraine, White Russia,
Baltic States, and so forth, for independence.

GEN. RUDENKO: Very well. I would like to ask you now: When did you meet
the Defendant Rosenberg for the first time, and when did you get his
information concerning the tasks of German propaganda in the East?

FRITZSCHE: I doubt whether before this Trial I ever spoke with Herr
Rosenberg, but I do believe I met him socially. However, never in my
life have I had an official conversation with him.

GEN. RUDENKO: Very well. You will be handed Document Number 1039-PS.
This is Rosenberg’s report on the preparatory work concerning matters
connected with the eastern countries. This document has already been
submitted to the Defendant Rosenberg and he did not deny it, but
confirmed it.

I would like you to turn to the second quotation which is marked. In
order to shorten this cross-examination, I will not read the whole
quotation. This report states:

    “Apart from these negotiations”—about which we spoke before—“I
    received the responsible representatives of the entire
    propaganda organization, namely Ministerial Director Fritzsche,
    Minister Schmidt, Reich Superintendent of Broadcasting
    Glasmeier, Dr. Grothe for the OKW, and others. Without going
    into details as to political objectives, I instructed the
    above-mentioned persons in confidence about the necessary
    attitude, with the request to tone down the whole terminology of
    the press on uniform lines, without issuing any statements.

    “The schemes for dealing substantially with questions concerning
    the eastern countries, which were prepared a long time ago, have
    now been issued by my office and I have passed them on to the
    propaganda representatives.”

Did Defendant Rosenberg correctly describe these events which occurred
in 1941, before the attack against the Soviet Union?

FRITZSCHE: No. I do not recall ever having been received by Rosenberg.
In any case I never received before 22 June, from Rosenberg or from any
of his colleagues, any report about the planned attack on the Soviet
Union.

On the other hand, and this perhaps may clarify matters, I do recall
that a colleague of Rosenberg’s frequently came to see me or my
colleagues. I even recall his name; he was chief of a press group, Major
Kranz, formerly an editor of the _Völkischer Beobachter_. This man
frequently came to see me and my colleagues and transmitted certain
wishes of Rosenberg’s pertaining to press propaganda. But in any case
this was not before 22 June.

GEN. RUDENKO: This means that as far as you are concerned what Rosenberg
writes in his report is not true?

FRITZSCHE: Untrue would be saying too much. It may be that this
information of which he talks refers to a later period of time. I cannot
judge that, as I have not read the entire document. It may also be that
Rosenberg, in this report, was not quite accurate when he mentions the
reception of the responsible representatives of the entire propaganda
organization.

GEN. RUDENKO: Very well. In this connection I would like to put two
questions to you. First of all, I would like to refer to the written
testimony of Hans Voss, which is Document USSR-471, and which you
already have. It is Excerpt Number 3 of Document USSR-471. Have you
found it?

FRITZSCHE: Yes, I have found it.

GEN. RUDENKO: I quote:

    “After the defeat of the German troops at Stalingrad and after
    the start of the general Soviet offensive on the whole Eastern
    Front, Goebbels and Fritzsche took great pains to shape German
    propaganda in such a way as to help Hitler very effectively in
    mastering the situation at the front. This propaganda was based
    on the hope that the Germans would succeed in holding out for a
    long time. There was an attempt to frighten the German
    population by disseminating calumnious reports of the brutal
    acts of the Russian soldiers and the intention of the Soviet
    Union to annihilate the German nation.

    “In the last stage of the war the propaganda conducted by
    Goebbels and Fritzsche made one last attempt to serve Hitler and
    to organize resistance to Soviet troops.”

Is that correct?

FRITZSCHE: It is not only incorrect, it is nonsense.

GEN. RUDENKO: You frequently used such terminology. Obviously it is a
sign of a professional practice. All right, I do not intend to enter
into polemics with you.

I would like you to take a look at your testimony of 12 September 1945.
It is the third excerpt of the Document USSR-474. Have you found that
passage? I will quote your explanations concerning this question.

FRITZSCHE: All of them are not my statements. What passage are you
referring to, sir?

GEN. RUDENKO: I mean marked Excerpt Number 3, which begins with the
words, “The military aggression against the Soviet Union.”

FRITZSCHE: Yes.

GEN. RUDENKO: Please pay attention:

    “Since we had a treaty with the Soviet Union the military attack
    on the Soviet Union was prepared by Germany in secret.
    Therefore, during the period of preparation for war against the
    Soviet Union, no propaganda was carried on. Accordingly, the
    German propaganda authorities did not begin active anti-Soviet
    propaganda until after the war started on the Eastern Front.

    “It must be added that the main task to which Goebbels set the
    whole propaganda machinery was to justify Germany’s expansionist
    policy toward the Soviet Union.

    “From this point of view, as chief of the German press and
    radio, I organized a vast campaign of anti-Soviet propaganda,
    attempting to convince the public at large that the Soviet Union
    and not Germany was the guilty party in this war. I must,
    however, state that we had no documentary basis for accusing the
    Soviet Union of preparing an armed attack on Germany.

    “In my radio talks I tried especially to instill fear of the
    horrors of Bolshevism in the hearts of the peoples of Europe and
    the German population. Thus I asserted that only Fascist Germany
    was the protective barrier for the European countries against
    Anglo-American ‘plutocracy’ and ‘Red imperialism.’”

Do you admit this?

FRITZSCHE: Here again actual statements made by me have been distorted.
If I may, I want to give you the factual basis briefly for the various
points.

It is correct to say that I stated in Moscow that the war against the
Soviet Union had not been prepared for by propaganda, because this war
came very suddenly and as a surprise. Furthermore, it is correct to say
that after the attack on the Soviet Union it was the main task of German
propaganda to justify the necessity of this attack; therefore we had to
emphasize again and again that we had merely forestalled a Soviet
attack. Further, it is correct that I said that the next task for
propaganda was to show that not Germany but Russia was guilty of this
war, which amounts to practically the same thing. Unfortunately the most
important argument which I quoted is omitted from this record, namely,
that I and with me millions of Germans believed the official communiqués
given out by the German Government because it would have seemed to us
nonsensical and crazy if in the middle of a war which had not yet been
decided in the West, we wantonly and willfully risked another war in the
East.

I continue. It is also correct that the evidence given in the _White
Book_ published by the Foreign Office at the time was rather meager and
it is furthermore correct to say that German propaganda wanted to make
Europe afraid of Bolshevism. It is finally correct that German
propaganda again and again emphasized the fact that Germany was the only
bulwark against the Soviet world revolution.

GEN. RUDENKO: Very well. I would now like to draw your attention to
Excerpt Number 4 of the same document, which is in your possession, in
connection with propaganda to keep alive the spirit of resistance in the
German people, notwithstanding all evidence of Germany’s obvious defeat.
I would like to read this very short Excerpt Number 4 from the same
document Number USSR-474. I quote:

    “Beginning in 1943 I tried my best to assert through German
    radio propaganda that Germany was in possession of weapons which
    would shake the power of our enemies. For this I used invented
    data regarding the output of the German war industry which had
    been given me by the Reich Minister for Munitions, Speer.”

Is that right?

FRITZSCHE: One part is wrong and the other part that is correct has been
wrongly stated.

To begin with the latter part: It is correct that I received figures
from the Ministry for Armaments and War Production which gave me great
hopes for progress. I received, for instance, figures dealing with
monthly aircraft production, figures dealing with new and especially
effective fighter planes. In the meantime, through direct questioning of
Speer himself, I have ascertained that the figures which I received were
quite correct at the time and that the airplanes either were used
wrongly, as, for instance, in the Ardennes offensive instead of for the
protection of the home country, or that they could not be used because
of the gasoline shortage. The first half however...

GEN. RUDENKO: You are going too much into details, Defendant Fritzsche.
You are going into a lot of details which have already been dealt with
here and which have nothing to do with you.

I would like to submit to you the testimony of Speer, who was
interrogated by the Soviet prosecutor here in Nuremberg on 14 November
1945. I submit this document as USSR-492. I would like to read into the
record only that part of the document which deals with the carrying out
of propaganda during this particular period. I quote:

    “In September 1944 I wrote a letter to Dr. Goebbels...In this
    letter I warned Goebbels that it was wrong to keep on giving out
    propaganda about new V-weapons, for in this way he would merely
    arouse vain hopes in the German people. This was secret
    propaganda which was carried out by Dr. Goebbels in order to
    inspire in the German people the hope of a favorable outcome of
    the war.”

Is that correct?

FRITZSCHE: Only partially. It is a fact that Dr. Goebbels, more than a
year before the use of the first V-weapon, himself made propaganda with
it. On the other hand, Speer in the meantime has stated in his testimony
here that he now knows the actual source of the propaganda dealing with
“miracle weapons,” namely Standartenführer Schwarz van Berk. Finally,
Dr. Goebbels in the last months of 1944, likewise tried to stifle this
“miracle weapon” propaganda which he himself had once instigated.

GEN. RUDENKO: Now, I would like to remind you of the part you played in
this propaganda. You propagandized these new weapons to instill in the
hearts of the German people the hope of a successful resistance.

I submit to you Document USSR-496. You already have it. It is your radio
speech of 1 July 1944.

THE PRESIDENT: General, are you going to finish very soon or shall we
adjourn now?

GEN. RUDENKO: I believe we should adjourn now, Mr. President, because I
will still need about half an hour.

                        [_A recess was taken._]

GEN. RUDENKO: Well, Excerpt Number 6 from Document USSR-496 has been
submitted to you. It is your speech, dated 1 July 1944. I am going to
read it into the record:

    “We Germans have been very reserved in our reports on the effect
    of the new weapons. We could afford this reserve, knowing that
    sometime or other Britain would break the silence with which she
    tried at first to gloss over the effect of the V-1. We were
    right about it. Reports from Britain during the last few days,
    and especially today, prove that the effects of the first
    thrusts with the new weapon are becoming all too obvious. It is
    completely beside the point for the British to complain now
    about the wave of hatred which is supposed to surge from Germany
    against the British Isles. In the fifth year of the war it is
    useless to talk about feelings, although much could be said
    about this.”

Do you admit, Defendant Fritzsche, that by means of such propaganda you
duped the German people and incited them to senseless resistance?

FRITZSCHE: On the contrary, in this case I spoke much more reservedly
and much more modestly than, for instance, the German press did about
the results of the V-1. For that matter the very next sentence following
your quotation reads, “We can only repeat that for us the V-1 is the
means with which we can break the enemy terror.”

GEN. RUDENKO: Now I should like to remind you, Defendant Fritzsche, of
your testimony of 12 September 1945 with regard to the activity of the
Werewolf organization. This document is Exhibit USSR-474, Excerpt Number
5. Have you found it?

FRITZSCHE: Yes, I have found it.

GEN. RUDENKO: I am going to read it:

    “At the end of February 1945 the State Secretary in the German
    Ministry of Propaganda, Dr. Naumann, sent on to me instructions
    from Goebbels to work out a plan for the organization of a
    secret broadcasting station. In reply to my question as to why
    this broadcasting station was needed, Naumann explained that the
    German Government had made the decision to transfer members of
    the NSDAP to an illegal secret organization called ‘Werewolf.’
    Naumann also revealed that all these illegal Werewolf groups
    would be directed by means of this broadcasting station, which I
    was to establish.”

As can be seen by your testimony you were opposed to the organization of
this radio station and you spoke about it with Goebbels. In spite of
this, the station was created, and the former chief of the Reich
Propaganda Office, Schlesinger, was given the task of directing the
broadcasts. Is that correct?

FRITZSCHE: No. Two things have been mixed up here. Firstly, the plan
described in the paragraph which you have read for the creation of a
Werewolf broadcasting station was a plan for a mobile station and that
mobile station was not built. On the other hand—incidentally, it
happened during my absence—on 1 April 1945, by direct order from Dr.
Goebbels, the so-called “Old German Broadcasting Station” was opened as
a Werewolf station.

GEN. RUDENKO: Very well. I do not want to argue with you about it and I
should like to submit to you your own speech broadcast on 7 April 1945.
It is the same Document USSR-496, Excerpt Number 7. Have you found it?

FRITZSCHE: Yes.

GEN. RUDENKO: At that time you broadcasted as follows:

    “However, as a result of superiority in manpower and material
    reserves, the enemy has now penetrated deep into German
    territory, and at this moment is about to carry out his program
    of extermination directed against us.”

I am skipping a few lines:

    “Let no one be surprised if this desire of strong hearts to
    avenge oppressed human beings does not even need a short respite
    for temporary recovery, but leaps suddenly and unexpectedly into
    flame and becomes active. Let no one be surprised if here and
    there in unoccupied areas civilians take part in the fight or
    even if, after the occupation has been carried out, the fight is
    continued by civilians, that is to say, if without preparation
    and without organization, there comes into being, springing from
    the pure instinct of self-preservation, that phenomenon which we
    call the ‘Werewolf.’”

Well, what can you tell us now?

FRITZSCHE: Although this quotation also has been torn from its context,
I recognize it very well. Unfortunately the passage is missing in which
I spoke of right and said, “Right is a sensitive concept which has its
roots in tradition and ethical consciousness.” At present...

GEN. RUDENKO: Excuse me if I interrupt you, Defendant. I did not ask you
for such detailed explanations. I just wanted to determine the fact that
you not only explained what the organization was, but also did your
utmost to foster the Werewolf organization.

Is that correct?

FRITZSCHE: That is absolutely incorrect. This is certainly not
propaganda for the Werewolf; it is in apology for cases of Werewolf
activity.

GEN. RUDENKO: Very well. Let us drop that subject. I should like to ask
you, do you know who the head of the Werewolf organization was?

FRITZSCHE: That has already been stated here. At the very head of it was
Bormann. Under him there was a Higher SS Leader whose name I tried in
vain to remember during my interrogations in Moscow. I knew one of his
associates, however, and that was Gunter d’Alquen.

GEN. RUDENKO: Very well. Before putting the last few questions to you, I
should like to ask you, is it not a fact that Rosenberg and Streicher
had great influence on German propaganda?

FRITZSCHE: Their influence was negligible. Streicher had no influence at
all on official German propaganda and Rosenberg only to an extent which
was not noticeable to me.

GEN. RUDENKO: All right. I still have a few questions to put to you. You
told the High Tribunal that had you known Hitler’s decrees for the
murdering of people you would never have followed Hitler. Did I
understand you correctly?

FRITZSCHE: You have understood me perfectly correctly.

GEN. RUDENKO: Now, in other words, I understand you to say that you
would have gone against Hitler?

FRITZSCHE: It is hard to say what I would have done. Of course, this is
a question about which I have now thought a great deal.

GEN. RUDENKO: I should like to ask you, if, as you stated here to the
High Tribunal, at the beginning of 1942 you received information that in
one of the regions in the Ukraine, which was at the time occupied by the
Germans, an extermination of the Jews and the Ukraine intelligentsia was
being prepared, simply because they were Jews and members of the
Ukrainian intelligentsia? Did you receive such information? Is that
correct?

FRITZSCHE: That is correct.

GEN. RUDENKO: That was in the beginning. In May of 1942 you were with
the 6th Army, and in the 6th Army you learned about the existence of an
order to shoot the Soviet commissars; is that right?

FRITZSCHE: Yes.

GEN. RUDENKO: You considered that this bloody order should not be
applied? Is that right?

FRITZSCHE: That is right.

GEN. RUDENKO: You knew that this order emanated from Hitler?

FRITZSCHE: Yes, I could imagine that.

GEN. RUDENKO: That is to say, in 1942 you knew already that Hitler’s
order to murder existed and yet you followed him?

FRITZSCHE: You are comparing two things which are not comparable. There
is quite a difference, not treating commissars as prisoners of war and
giving an order for the killing of 5 million Jews.

GEN. RUDENKO: Then, if I understand you correctly, the fact that you did
not go against Hitler, meant that you considered such an order to be
permissible in the conduct of the war by the German Army?

FRITZSCHE: No; I considered it was an impossible order; and that is why
I opposed it, and not only passively as others did.

GEN. RUDENKO: But you continued to support Hitler?

FRITZSCHE: Yes.

GEN. RUDENKO: Here is the last question. Tell me, during the war, did
you ever concern yourself with the question of preparations for
biological warfare?

FRITZSCHE: Never.

GEN. RUDENKO: Did you ever hear the name of a certain Major Von
Passavant?

FRITZSCHE: Yes, I know that name.

GEN. RUDENKO: He was the representative of the OKW in the Ministry of
Propaganda, was he not?

FRITZSCHE: No, he was not. He was a radio expert in the Propaganda
Department of the OKW.

GEN. RUDENKO: A copy of a letter of 19 October 1944 will be submitted to
you. This letter bears your facsimile signature, and it is directed to
Major Von Passavant of the OKW. This is a short document, and I am going
to read it to you:

    “To the Chief of Broadcasting, Major Von Passavant, OKW:

    “A listener, factory owner Gustav Otto, Reichenberg, has sent me
    the enclosed sketch with the proposal to carry out biological
    warfare. I am submitting this to you with the request that you
    forward it to the proper office.

    “Heil Hitler. Fritzsche.”

Do you remember this document?

FRITZSCHE: Of course I do not remember it. At the same time I want to
state that I have no doubt that it is genuine.

GEN. RUDENKO: Very well. I should like to put the last question to you:
This shows that you were in favor of the planning and the carrying
through by Germany of biological warfare, is that correct?

I have finished, Mr. President.

FRITZSCHE: But I must have an opportunity to answer the last question. I
wish to state that I was by no means in favor of biological warfare, but
the situation was merely this: Every day piles of letters came in from
listeners and these were passed on by one of the departments to the
office competent to deal with the matter concerned and the accompanying
letter, which consisted of two or three lines, was submitted to me for
signature. As a rule I did not read the contents of the letters.

THE PRESIDENT: Dr. Fritz, do you want to re-examine?

DR. FRITZ: Herr Fritzsche, just now during General Rudenko’s
cross-examination you were asked about the radio speech of 2 May 1940 in
which you spoke about your journey to Norway. Can you tell me more
exactly when you went on that trip?

FRITZSCHE: I am afraid I cannot tell you the date exactly, but if I am
not mistaken it was at the end of April.

DR. FRITZ: The official report of the Norwegian Government on war damage
after Norway’s occupation by the Germans was put to you. Here it is said
that the fighting which had caused this damage could not have taken
place until after you had already completed your journey. Is that true?

FRITZSCHE: That is quite possible, but I should like to say this: In the
extract which the Russian prosecutor has read without quoting the
beginning, I described precisely what I had seen in clearly stated
places; Lillehammer and Godenthal are a few names which occur to me now.
To compare these statements now with the statements made by the
Norwegian Government regarding the total damage is nothing less than the
attempt to measure a liquid with a yard measure or vice versa.

DR. FRITZ: I have one other question in this connection. Was this
journey of yours carried out before the British landing in Norway or
afterward?

FRITZSCHE: I myself had an opportunity to watch a fight with British
troops. I think it was just south of a place called Ottar in the
Buldrenthal.

DR. FRITZ: Mr. President, General Rudenko, during his cross-examination,
submitted three interrogation records. One was from Voss, USSR-471, one
from Schörner, USSR-472, and one from Stahel, USSR-473. In the meantime
I have looked through these three records and I should like to ask the
High Tribunal also to compare these three records. I have ascertained
that in these three records, of the statements of three different
persons, parts of the answers are repeated; and they tally, word for
word. It says, for example...

THE PRESIDENT: You are not getting this from the witness; you are making
an argument to us, and you must do that at some other time.

DR. FRITZ: I just wanted to make an application, Mr. President. If these
three records are used for the findings, then I wish to make an
application that at least one of these persons who were interrogated be
brought here in person for the purpose of cross-examination.

THE PRESIDENT: Were you meaning that you should see, or that we should
examine, the whole of those three affidavits, or were you meaning that
you wanted one of the people who made the affidavits to come here in
order to give evidence and be cross-examined? Which do you mean?

DR. FRITZ: The latter, Mr. President. I should merely like to request
that all three be summoned.

FRITZSCHE: All three. I can only ask to have all three called.

THE PRESIDENT: The Tribunal will consider your application.

DR. FRITZ: Apart from this, Mr. President, I do not wish to carry out
any further redirect examination.

THE PRESIDENT: There is one thing, Defendant. You referred to the
Commissar Decree, or order, and you spoke of it as though it were an
order not to treat commissars as prisoners of war. That was not the
order, was it? The order was to kill them.

FRITZSCHE: The order which I got to know about in the 6th Army was an
order saying that commissars who had been captured should be shot.

THE PRESIDENT: Yes. That is a very different thing from not being
treated as prisoners of war. The answer you gave was that you imagined
the Commissar Order came from Hitler, but it is a very different thing,
an order not to treat commissars as ordinary prisoners of war and to
kill 5 million Jews. That was not a fair comparison at all, was it?

FRITZSCHE: In this case I must admit that my way of expressing myself
with reference to these commissars was not correct.

THE PRESIDENT: There is one other thing I want to ask you. In October
1939 this untruthful statement about the _Athenia_ was published in a
German newspaper. That is right, is it not?

FRITZSCHE: In October 1939? During the whole of September and October
untruthful statements about the _Athenia_ were made in the German press
as well as on the German radio.

THE PRESIDENT: Yes. But on the 23d of October 1939 a particularly
untruthful statement attributing the sinking of the _Athenia_ to Mr.
Winston Churchill was made in a German newspaper. You told us about it.

FRITZSCHE: Yes.

THE PRESIDENT: And you continued to broadcast referring to those alleged
facts for some time, did you not?

FRITZSCHE: Of course, because at the time I was still under the
impression that they were true and my...

THE PRESIDENT: That is what I wanted to ask you about. You had a naval
liaison officer in your office?

FRITZSCHE: Yes.

THE PRESIDENT: What inquiries did you make?

FRITZSCHE: This naval officer was not actually the liaison officer
between us and the High Command of the Navy. He was censorship officer
for the entire Armed Forces. Nevertheless I naturally called on his
services in connection with naval matters. And several times I ordered
him, or rather, requested him to find out from the High Command of the
Navy how the investigation of the Athenia case stood. The answer was
always the same: “The position still is that no German submarine was
near the place of the catastrophe.”

THE PRESIDENT: And are you saying that that liaison officer of the Navy
told you that after the 23d of October 1939?

FRITZSCHE: Yes.

THE PRESIDENT: Did he continue to tell you that?

FRITZSCHE: Yes.

THE PRESIDENT: That is all. He may return to the dock.

Yes, Dr. Fritz?

DR. FRITZ: Now, with the permission of the Tribunal, I should like to
call the witness Herr Von Schirmeister.

[_The witness Von Schirmeister took the stand._]

THE PRESIDENT: Will you state your full name, please?

MORITZ VON SCHIRMEISTER (Witness): Moritz von Schirmeister.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. FRITZ: Witness, before beginning your examination, I should like to
ask you to make your answers quite general and as brief as possible.

Will you please give the Tribunal very briefly some particulars of your
career, so that the Tribunal may know more about you.

VON SCHIRMEISTER: I come from a family of officers and civil servants;
studied theology for three terms; 10 years as a banking official, 5 of
them in South America; then editor until my appointment in Berlin; on 1
October 1931 I became a member of the Party; SS Hauptsturmführer in the
Allgemeine SS; during the war four times a soldier; the last time from
31 July 1944 on; on 22 September 1944 prisoner of war in British hands;
since then I have been in Great Britain.

DR. FRITZ: When I discussed the subject of your examination with you a
few days ago, you told me that your former positive attitude toward
National Socialism would not prevent you in any way from making truthful
statements here, is that true?

VON SCHIRMEISTER: I have already told you that I believed in this cause,
that I have sacrificed everything to it, that I have lost everything
through it. It was very bitter for me. But today I know that I have
served a bad cause. I have freed myself entirely of it. In my last camp
in England I was permitted to assist in the re-education of my comrades.
There I was allowed to edit the camp newspaper. And if I only could,
then I would help today to rebuild a democratic Germany.

DR. FRITZ: When did you become acquainted with the Defendant Fritzsche?

VON SCHIRMEISTER: On 1 July 1938.

DR. FRITZ: What were you at the time? What position were you to occupy?

VON SCHIRMEISTER: I was an editor in Braunschweig and I was called to
the Ministry of Propaganda in order to become Dr. Goebbels’ personal
press expert.

DR. FRITZ: What position did you actually occupy in the Ministry of
Propaganda?

VON SCHIRMEISTER: Up to 1 July 1943 I was Dr. Goebbels’ personal press
expert; then I was personal expert to State Secretary Dr. Gutterer until
1 April 1944; then I went with him for 3 months to the UFI which was the
controlling company of all film companies. Then, on 31 July 1944, I went
to the front.

DR. FRITZ: Did you have daily contact with Dr. Goebbels?

VON SCHIRMEISTER: Yes, since the outbreak of the war. Let me describe
briefly what my main activities were.

DR. FRITZ: Very briefly, please.

VON SCHIRMEISTER: During the war I had to look through all the news and
propaganda material coming in from enemy broadcasting stations and
regularly submit extracts from it to Goebbels. These extracts formed the
basis for Dr. Goebbels’ propaganda instructions which he himself issued
every morning. In the afternoon and evening I had to telephone them to
the press section and radio section. So that during the war, except when
my deputies took my place, I was with Dr. Goebbels in his apartment, I
took my meals with him, slept in his house, accompanied him on journeys,
and so on.

DR. FRITZ: What position did Fritzsche occupy at the time?

VON SCHIRMEISTER: Herr Fritzsche in those days was the deputy chief in
the department Home Press.

DR. FRITZ: Will you please describe the nature and importance of
Fritzsche’s position in the Propaganda Ministry also during the period
which followed. Very briefly, please.

VON SCHIRMEISTER: I was to get acquainted with the work of the
department Home Press. Conditions there were as bad as they could be.
The chief, Herr Berndt, adopted undisguised table-thumping tactics. He
went about barking out commands and sacking editors en masse.

In ability and knowledge the officials in charge were inferior to the
average editor. The only steadying influence was Herr Fritzsche; he was
the only expert. He knew the needs and requirements of the press. On the
one hand he had to mend the china which Herr Berndt was constantly
smashing and on the other hand he tried to replace inefficient officials
in the organization with better ones.

DR. FRITZ: Would it be correct to say, therefore, that Defendant
Fritzsche was not appointed as an exponent of the Party, but as an
expert?

VON SCHIRMEISTER: Only as an expert. The extremist Party men in the
Ministry did not give Fritzsche his full due. But as an expert he was
then and later the good spirit of the press.

DR. FRITZ: Was Fritzsche one of those collaborators in the Ministry who
had regular conferences with Goebbels?

VON SCHIRMEISTER: These regular conferences had not yet begun to be held
in those days, and Fritzsche did not partake in them in any case.

DR. FRITZ: So that he was not consulted until he became a department
chief?

VON SCHIRMEISTER: Yes; only as far as such conferences were taking
place, but actually only since the outbreak of war.

DR. FRITZ: In what way did Dr. Goebbels confer with his associates?

VON SCHIRMEISTER: After the war broke out there were daily conferences
at 1100 hours, which were presided over by Dr. Goebbels personally and
at which he gave all necessary propaganda instructions.

DR. FRITZ: How many people attended these 11 o’clock meetings?

VON SCHIRMEISTER: At the beginning, that is to say, up to the beginning
of the Russian campaign, about 20 people. Later the circle grew to about
50 people.

DR. FRITZ: Were there discussions during these conferences or was it
more or less the giving out of orders?

VON SCHIRMEISTER: There was no discussion during these conferences.
First of all, the liaison officer from the OKW would give a survey of
the military situation and then Dr. Goebbels would give his instructions
regarding propaganda, mostly for the press, the radio, and the
newsreels.

DR. FRITZ: Who presided over the conferences when Dr. Goebbels was not
present?

VON SCHIRMEISTER: Normally the State Secretary.

DR. FRITZ: And who presided when the State Secretary was not there
either?

VON SCHIRMEISTER: Usually Herr Fritzsche, sometimes also the head of the
foreign press department or the foreign department, but mostly Herr
Fritzsche.

DR. FRITZ: Did Fritzsche in these cases give the daily propaganda
instructions on his own initiative or how was that done?

VON SCHIRMEISTER: No; if the Minister was not in Berlin, he was kept
informed about news material coming in from abroad. He would then give
the instructions to me or to one of my deputies in the same way as he
did during the conferences. I had to pass on these instructions by
telephone. In Berlin they were taken down by stenographers and then read
out during the conference verbatim as instructions coming from the
Minister. By the way, this must be seen by the minutes of the meetings.
They were always called “Instructions from the Minister.”

DR. FRITZ: If Fritzsche used written instructions such as you have
described, given by Dr. Goebbels, did he not try to clear up questions
which Goebbels had not dealt with, by bringing them up for discussion?

VON SCHIRMEISTER: When Dr. Goebbels was farther away from Berlin, it
might happen that the latest news did not reach him in time. In these
cases Herr Fritzsche would bring things up for discussion, consider the
pros and cons and then give instructions on his own initiative. That was
then put down in writing; the Minister read it afterward and he either
approved it or altered it.

DR. FRITZ: But then, surely apart from the big conferences with 30 or 50
people present at which Goebbels gave his instructions there must have
been more confidential conferences as well.

VON SCHIRMEISTER: In the course of the morning, naturally, individual
department chiefs also came for official discussions with the Minister.

DR. FRITZ: Was Fritzsche also called to these more confidential
conferences?

VON SCHIRMEISTER: Generally, no. The Minister used the conferences at
which all departments were represented to summarize whatever he had to
say for the press, radio, and newsreels. The heads of those departments
whose special functions were not of interest to the others, came for
individual conferences.

DR. FRITZ: How often was Herr Fritzsche consulted as compared with, say,
the state secretaries—Hahnke, Gutterer, and Dr. Naumann?

VON SCHIRMEISTER: The state secretaries could always be present during
these individual conferences and so could the personal advisers who were
always there. Herr Fritzsche was very rarely present at these individual
conferences.

DR. FRITZ: What was the position of the 12 department heads of the
Ministry of Propaganda, one of whom was the Defendant Fritzsche?

VON SCHIRMEISTER: These department heads can be classified into experts
on the one side, such as, for instance, the head of the budget
department, Dr. Ott, and confirmed Party men on the other side as, for
instance, Herr Berndt. Officially they had not a particle of the
authority which was normally exercised by a department head in a
ministry. It was generally known that the Minister was using them as
tools and that when he did not need them any more he would throw them
out. That did not apply to the department heads only. I remember the
unworthy manner in which he threw out State Secretary Gutterer when he
had enough of him.

DR. FRITZ: The Indictment accuses Fritzsche of having made of Germany’s
news agencies, radio, and press an instrument that played an important
part in the hands of the so-called conspirators in carrying out their
plans. Was Fritzsche responsible for the organization of the press in
the National Socialist State and what can you say to this charge?

VON SCHIRMEISTER: When Herr Fritzsche entered the Ministry, this press
department had been set up and organized for some time. Moreover, I can
also say that even Dr. Goebbels himself cannot be regarded as belonging
to this circle of conspirators as defined by the Indictment; for, after
all, he did not want to drive us into war, but always advocated the
conquest of countries without bloodshed.

DR. FRITZ: So that the organization was already set up when Fritzsche
took over the department German Press in the winter of 1938-39?

VON SCHIRMEISTER: Yes, already completely organized.

DR. FRITZ: As the head of that department was Fritzsche independent? If
not, who was his superior?

VON SCHIRMEISTER: Unfortunately Fritzsche was not only subordinate as
department chief to Dr. Goebbels, but he also stood between two fires.
On the other side there was the Reich Press Chief, Dr. Dietrich, and the
entire German press knew about this discord between the two. Although
Reich Press Chief, as State Secretary, was a staff member of the
Ministry of Propaganda, nevertheless he demanded the right to be able to
give orders independently in his capacity of Reich Press Chief. If,
therefore, the Minister and the Reich Press Chief did not agree on a
certain point, then it was the unfortunate chief of the department
German Press who bore the brunt of this.

DR. FRITZ: In what way was Fritzsche active in the press organization?
Did he tighten the fetters or did he try to loosen them?

VON SCHIRMEISTER: I have already said that Herr Fritzsche was the only
real expert of any caliber who worked in the press department. He knew
the needs, the worries, and the requirements of the press. He knew that
an editor could work only if you give him a certain amount of freedom,
and thus always and at every opportunity he fought to have the fetters
loosened. He did much more than was apparent to the outside world, for
the Minister would make such and such a decision and the outside world
would come to know only what the Minister wanted.

THE PRESIDENT: Do you think he has answered the question?

DR. FRITZ: Did Dr. Goebbels have any objections to the way the press
worked? Was it not aggressive enough for him? Please be very brief.

VON SCHIRMEISTER: No, it was not aggressive and not obdurate enough for
him.

DR. FRITZ: And how did Fritzsche react to such demands both with
reference to individual journalists and with reference to the newspapers
as a whole?

VON SCHIRMEISTER: Again and again, at every opportunity, both during the
conferences presided over by the Minister and at private meetings with
the Minister, he spoke on behalf of the press and the journalists and
tried to represent their point of view to the Minister.

DR. FRITZ: Can you mention a few names of journalists or papers whom
Fritzsche tried to protect in the manner described?

THE PRESIDENT: Dr. Fritz, why should he give the names of individual
journalists and papers? Isn’t it too detailed to go into that?

DR. FRITZ: Very well; but Mr. President, may I, in that case, at least
offer an affidavit in connection with this question as Document Number
Fritzsche-5. It is in my Document Book Number 2 on Page 22. It comes
from the editor of the _Frankfurter Zeitung_, Dr. Wendelin Hecht, and I
should like to quote it very briefly:

    “I herewith make the following affidavit for submission to the
    International Military Tribunal in Nuremberg:

    “1. It is true that the Defendant Hans Fritzsche also helped to
    protect the _Frankfurter Zeitung_ for several years against a
    ban by withholding copies of the _Frankfurter Zeitung_ from the
    Führer’s headquarters.

    “2. In the numerous attacks directed against the _Frankfurter
    Zeitung_ because of its political attitude the Defendant Hans
    Fritzsche repeatedly intervened in favor of the continued
    publication of the _Frankfurter Zeitung_.

    “Leutkirch, 6 March 1946. Dr. Wendelin Hecht.”

What other influential persons, apart from Dr. Goebbels, were there in
the Ministry of Propaganda?

VON SCHIRMEISTER: After State Secretary Hahnke’s departure there was
only one man in the Ministry of Propaganda who had any real influence on
the Minister, only one man with whom Dr. Goebbels had some personal
relations, and that was his first personal adviser, Dr. Naumann, who
later became his state secretary.

DR. FRITZ: Did Fritzsche come to you frequently to learn more about the
Minister’s views because the Minister did not inform Defendant
Fritzsche?

VON SCHIRMEISTER: Very often, because Herr Fritzsche knew that I also
had many private conversations with the Minister and he always
complained that he was left in suspense and all at sea, and he asked me
if I could not tell him the Minister’s view about this or that matter. I
did succeed in helping him by occasionally arranging for him to be
invited by Dr. Goebbels to private meetings in which I spoke openly
about Herr Fritzsche’s needs.

DR. FRITZ: Did Goebbels keep the radio strictly under his own control?

VON SCHIRMEISTER: During the war the radio was for Dr. Goebbels the most
important instrument of propaganda. He did not keep such a strict watch
on any department as he did on the radio department. At meetings over
which he presided he personally decided the most minute details of the
artistic program...

DR. FRITZ: That is enough, Witness. Was Fritzsche really the leading man
of German broadcasting, as he appeared to the outside world?

VON SCHIRMEISTER: By no means. The leading man was Dr. Goebbels himself.
Apart from that, Fritzsche here again was between two stools, because on
the other side demands came in from the Foreign Office with reference to
foreign broadcasts.

DR. FRITZ: Was Fritzsche in his radio speeches perhaps too halfhearted
for Dr. Goebbels?

VON SCHIRMEISTER: I myself, by order of the Minister, repeatedly had to
reprimand Fritzsche, because the former claimed that his broadcasts were
much too weak.

DR. FRITZ: Did Goebbels also praise him? And if so in what manner?

VON SCHIRMEISTER: If, as was often the case, the Minister did praise
Fritzsche...

THE PRESIDENT: We haven’t any interest in whether Goebbels praised him.

DR. FRITZ: Then another question: Did Defendant Fritzsche ever
contradict the Minister?

VON SCHIRMEISTER: Herr Fritzsche was one of the few people in the
Ministry of Propaganda who did contradict the Minister, both during
conferences and in his apartment. He was always calm and determined and
often it had a certain effect.

DR. FRITZ: Mr. President, may I have your permission to draw your
attention at this point to a document, an affidavit by Scharping,
Document Number Fritzsche-2, which has already been mentioned
frequently. It is at the end of Page 7 and the beginning of Page 8 in my
Document Book Number 2. Might I perhaps quote one short sentence: “At
the so-called ministerial conferences it was Fritzsche alone who
contradicted Goebbels on political questions.”

Witness, who was responsible for the definitely false or exaggerated
news in the German press during the Sudeten crisis?

VON SCHIRMEISTER: That was Alfred Ingemar Berndt, the head of the
department. At that time he spent whole nights pouring over General
Staff maps, directories, and lists of names, using them to fabricate
atrocity reports from the Sudetenland. Herr Fritzsche watched this with
anxiety. He came to me once and asked me, “What are we drifting into?
Are we not drifting into war? If only we knew what they really want at
the top and what is behind it all.”

DR. FRITZ: And then another question on the same subject. Did Goebbels,
in connection with any military or political actions, which were being
carried out or were to be carried out, ever consult beforehand with the
Defendant Fritzsche?

VON SCHIRMEISTER: Not only did he not consult with Herr Fritzsche, but
with nobody at all. The Minister never had any such consultations.

DR. FRITZ: Fritzsche asserts that he did not hear of Dr. Goebbels’
instigation of the anti-Semitic excesses in November 1938 until much
later, a remark made by Dr. Goebbels himself. That does not sound very
credible, because, after all, Defendant Fritzsche was a close associate
of Dr. Goebbels. Can you give us an explanation?

VON SCHIRMEISTER: In 1938 certainly none of us in the Ministry realized
that Dr. Goebbels was the instigator. During the night in question Dr.
Goebbels was not in Berlin. As far as I remember, just before that he
had been to see the Führer and he was still in southern Germany. The
conversation which you have just mentioned did not take place until the
middle of the war. It took place at Lanke, where the Minister had a
house and it was on an occasion when Herr Fritzsche had also been
invited. Someone put the direct question to the Minister as to the cause
of these excesses of November 1938. Thereupon Dr. Goebbels said that the
National Socialist economic leadership had come to the conclusion that
the elimination of Jewry from Germany’s economy could not be carried out
further...

DR. FRITZ: Witness, excuse me, that is enough. We have heard about it
already today. Did Fritzsche later on—I believe it is supposed to have
been in June 1944—talk to you about his general attitude toward the
Jewish problem?

VON SCHIRMEISTER: In May or June 1944 I talked to Fritzsche in his
apartment about the fact that on the day of these outrages he had said
to me, “Schirmeister, can one participate in this sort of thing and
still be a decent human being?” And then Herr Fritzsche said to me, “You
know, I have really always been an anti-Semitic, but only in the sense
that some of the Jews themselves also were.” And he mentioned a Jewish
newspaper, I believe the _C. V. Zeitung_...

DR. FRITZ: That is enough, Witness. Then how do you explain Fritzsche’s
anti-Semitic statements in various of his radio speeches?

VON SCHIRMEISTER: They had been ordered by the Minister. We had seen
from the British press that a certain anti-Semitic current in Britain
was growing, but a law in England stopped this from appearing in the
British press. Now the Minister tried to find a common factor against
which our propaganda abroad could be directed. This common factor was
the Jew.

To give support to the foreign propaganda by the Reich, Herr Fritzsche
received orders that in Germany, too, he should touch upon this subject
in some of his broadcasts.

THE PRESIDENT: How long do you think you will be in concluding the case
of the Defendant Fritzsche?

DR. FRITZ: I think three-quarters of an hour at the most, Mr. President.

THE PRESIDENT: Well then, after that the Tribunal will continue the case
of the Defendant Bormann until 1 o’clock tomorrow.

      [_The Tribunal adjourned until 29 June 1946 at 1000 hours._]




                   ONE HUNDRED AND SIXTY-SEVENTH DAY
                         Saturday, 29 June 1946


                           _Morning Session_

THE PRESIDENT: I will deal with the supplementary applications for
documents.

The first application on this list was on behalf of the Defendant Von
Neurath, and that has been dealt with.

The second was on behalf of the Defendant Streicher. That was withdrawn.

The third was on behalf of the Defendant Dönitz for an affidavit of
former Fleet Judge Jäckel. That application is granted.

The next two, 4 and 5, were on behalf of the Defendant Von Neurath.
Those have been withdrawn.

The next three, 6, 7, and 8, on behalf of the Defendant Rosenberg, are
denied.

The next, on behalf of the Defendant Von Papen, have all been dealt with
during the presentation of the defense on behalf of Von Papen.

The next two, on behalf of the Defendant Bormann, are granted.

The last three, 12, 13, and 14, on behalf of the Defendant Göring, are
subject to the possibility of agreement being reached upon the question
of whether affidavits are to be presented or witnesses called, and
therefore that application is postponed.

That is all.

SIR DAVID MAXWELL-FYFE: My Lord, before the Tribunal goes on with the
business of the day, I should like to inform the Tribunal of the results
of my inquiries as to outstanding witnesses and perhaps these could be
supplemented by any of the learned counsel who can.

My Lord, as far as I can see, there are the witnesses whom Your Lordship
has just mentioned of the Defendant Göring, dealing with the question of
Katyn.

My Lord, the next witnesses that were outstanding were three that the
Tribunal allowed to be called for cross-examination if desired in
respect to the case of the Defendant Kaltenbrunner. I have just had a
word with Dr. Kauffmann, and he says that he will not require the
witnesses Tiefenbacher, Steinbauer, and Strupp for cross-examination.

As far as my information goes, the next is Admiral Böhm in the case of
the Defendant Raeder.

THE PRESIDENT: Before you get to that, Sir David, on the list that I
have there was a witness called Strupp for Kaltenbrunner.

SIR DAVID MAXWELL-FYFE: Yes, My Lord, there are three, Tiefenbacher,
Steinbauer, and Strupp. Dr. Kauffmann tells me he does not want these.

THE PRESIDENT: Very well. Then you were speaking about the Defendant
Raeder.

SIR DAVID MAXWELL-FYFE: My Lord, there is the question of Admiral Böhm.
Dr. Siemers was going to let the Prosecution see an affidavit, and I
have not seen it yet; but, My Lord, I do not anticipate that the
Prosecution will require that witness unless the affidavit is in very
different form from what I expect.

My Lord, the only other witnesses that I know about are the three for
which application was made by Dr. Fritz yesterday in the present case.
The Tribunal is considering that.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: My Lord, that, as far as I can see, is the full
extent of the outstanding witnesses, unless I have missed some.

THE PRESIDENT: Was there an application for witnesses from the Defendant
Bormann on the 26th of June?

SIR DAVID MAXWELL-FYFE: Well, I asked Bergold this morning. He has only
got one witness that he is calling, he told me, who unfortunately is not
here today.

THE PRESIDENT: Well, I am told he has just now arrived.

SIR DAVID MAXWELL-FYFE: My Lord, Your Lordship’s information is later
than mine.

THE PRESIDENT: It has only this moment come through.

But so far as the others are concerned, there is only the one that Dr.
Bergold wants to call now?

SIR DAVID MAXWELL-FYFE: So Dr. Bergold informed me this morning.

DR. BERGOLD: May it please the Court, only one witness has arrived. But
I have put in several more requests which have not been decided on, and
I cannot say whether these witnesses will ever arrive or whether they
can be found. The Bormann case is characterized by the fact that not
only the defendant cannot be found but almost all the witnesses cannot
be found either. In the course of today’s proceedings on the Bormann
case I should like to put a special application before the High Tribunal
which I do not wish to do just now.

THE PRESIDENT: One moment. Will you tell us exactly which witnesses you
are referring to?

In your letter of the 29th of June you withdraw your application for
Fräulein Christians.

DR. BERGOLD: Yes, Mr. President.

THE PRESIDENT: Dr. Klöpfer is the witness who just arrived in Nuremberg.

DR. BERGOLD: Yes. Then there are the witnesses Kupfer and Rattenhuber
who are still not here and also the witness Christians.

THE PRESIDENT: Well, Helmut Friedrich has not been located?

DR. BERGOLD: No, he has not been found.

THE PRESIDENT: Are you wanting to call Fräulein Christians?

DR. BERGOLD: She has not yet arrived either. She was at Camp Oberursel.
She received leave and while on leave disappeared—obviously she has
fled.

THE PRESIDENT: Have you got your application of 26 June or did you make
an application of 26 June?

DR. BERGOLD: Yes, I did make an application.

THE PRESIDENT: Whom did you ask for then?

DR. BERGOLD: Just a minute, I have to consult my secretary.

SIR DAVID MAXWELL-FYFE: Fräulein Christians and Dr. Helmut Friedrich.

THE PRESIDENT: Well, Dr. Klöpfer and Friedrich.

SIR DAVID MAXWELL-FYFE: Yes, and Fräulein Christians, My Lord.

DR. BERGOLD: On 26 June I applied for the witnesses Falkenhorst,
Rattenhuber, and Kempka. I could dispense with Falkenhorst if I might
have Dr. Klöpfer instead.

THE PRESIDENT: Well, Dr. Klöpfer is the only one who has arrived, as I
understand it.

DR. BERGOLD: Yes, the only one who has arrived, Mr. President.

THE PRESIDENT: What the Tribunal wants to know is how many you want to
call now, and with reference to the others you had better withdraw them
if you cannot find them.

DR. BERGOLD: Very well, Your Lordship, I wanted to put in an application
for postponement. The witness Dr. Klöpfer has only just arrived. Up to
now I have not had a chance to talk to him and I consider it unjust for
him to have to testify here for the first time. Moreover, he is not
prepared, he does not know the documents which have been presented by
the Prosecution, and I myself do not know whether he has any knowledge
about the things on which I want to question him. Therefore, I should
like to apply for the proceedings in the case of Bormann to be postponed
until 10 o’clock on Monday to give me the opportunity to hear my one
chief witness and to discuss the case with him. I do not even know
whether I want to have the witness interrogated for he may possibly make
statements that are quite irrelevant. It is not my fault that I have not
heard him until now. I applied many months ago to have him brought here
and I would not have found him even today if at the last moment I had
not had the very kind assistance of the American Prosecution. I
believe—I have also spoken to Sir Maxwell-Fyfe—a postponement until
Monday at 10 o’clock would be quite proper for my case in order to give
me at least time to prepare; if not—my defendant has not been here and
my witnesses have not been here and I have not been able to prepare
anything.

THE PRESIDENT: Well, Dr. Bergold, you have had many months in which to
prepare your case and the Tribunal has put the matter back for you
already for a very long time and this witness is now here. You can see
him immediately and the Tribunal thinks you ought to go on. You must
have known that the case would come on, in the same way every other case
has come on, in its proper place, subject to the license which has been
allowed to you to have your case put back to the end and all your
applications for witnesses and documents put back to the very latest
possible moment; and the witness is here and we still have some time to
deal with the witnesses for Fritzsche and documents.

The Tribunal thinks in those circumstances you ought to go on.

DR. BERGOLD: Mr. President, it is quite correct I have had months at my
disposal; but if I can obtain no witnesses and no information—I ask the
Tribunal to put themselves in my place. What is the use to me of waiting
many months in vain, months during which I could do nothing. The
witnesses were not here, nobody could tell me where the witness Klöpfer
could be found. He was only found at the very last moment. I cannot
discuss the entire case with him in 15 minutes. I am just asking for a
very short postponement until Monday morning. The Tribunal will lose
only a very few hours through that. It is not my fault that I have been
assigned such an unusual defendant, one who is not present.

THE PRESIDENT: Dr. Bergold, the only thing you propose to prove by this
witness is the alleged fact that Bormann is dead and any evidence he can
give about that. That is what the application says.

DR. BERGOLD: No, may it please the Court, that is a mistake. The witness
Klöpfer cannot testify as to that. He can only give his opinion as to
the rest of the Indictment, namely whether Bormann is guilty or not.
Only the witnesses Christians, Lueger, and Rattenhuber can give evidence
as to the death of the Defendant Bormann. But the witness Klöpfer can
only testify concerning the Indictment itself.

THE PRESIDENT: Where is the application for Klöpfer? Where is your
application?

DR. BERGOLD: It is my application of 26 May.

THE PRESIDENT: Let me see it. Have you got it there? Dr. Bergold, do you
not have anything else at all in the way of documents or evidence that
you can continue with without calling this witness Klöpfer?

DR. BERGOLD: My Lord, what I have is so small and meager that I myself
do not know whether it is relevant until I have questioned the witness.
Up to this point I have been dependent on pure supposition. I have not
been able to receive or obtain any effective data. They are all legal
constructions which can be made untenable by one word from the witness.

MR. THOMAS J. DODD (Executive Trial Counsel for the United States): Mr.
President, I have an objection to any postponement for this case. As the
Court has pointed out, counsel has had months and he had every
co-operation from our office, both for his documents and for his seeking
out of his witnesses; and if he would stop talking and go out and talk
with his witness, who is here now, I think he might be prepared to go on
with his case.

THE PRESIDENT: Dr. Bergold, the Tribunal will go on with the case
against the Defendant Fritzsche now, and in the meantime, you will have
an opportunity of seeing this witness Klöpfer; and if after seeing him
you wish to make further application, you may do so; but the Tribunal
hopes that, if you can ascertain what the nature of his evidence is,
that you will be able to go on with it.

I now have your—I had it only in German before—but I now have in
English your application for the witness Klöpfer, and a summary of it is
that he was head of Section III in the Party Chancellery and he can deal
with questions relating to the drafting and elaboration of laws and that
he is to testify that the activity of Bormann in the proclamation of
laws and ordinances was an entirely subordinate one. That is the only
reason why you allege that you want to call him in your application.

DR. BERGOLD: That is my supposition. There is the possibility that the
witness, of course, really knows much more, for he was one of the chief
collaborators. I drew up my applications very carefully, because as a
lawyer I did not want to submit a fantasy to the Court.

THE PRESIDENT: Well, I have said what you can do with reference to
Klöpfer, and are you still asking to call a witness called Falkenhorst?

DR. BERGOLD: I can only decide on that after I have talked with the
witness Klöpfer. In all probability I shall forego the calling of this
witness Falkenhorst.

THE PRESIDENT: Well, you heard what I said, Dr. Bergold. You can now see
Dr. Klöpfer.

SIR DAVID MAXWELL-FYFE: My Lord, I only wanted the Tribunal to know that
that was the position as to witnesses; and when Your Lordship asked me,
I said that the process of finishing off witnesses might take 2 days. My
Lord, subject to the Katyn witnesses, it might take much shorter than
that, as I am at present advised.

THE PRESIDENT: Yes. And when shall we be informed what the position is
with reference to the Katyn witnesses, as to whether there is an
agreement as to using affidavits or calling witnesses?

SIR DAVID MAXWELL-FYFE: My Lord, I will make inquiries and try to let
Your Lordship know at the end of the session.

THE PRESIDENT: I take it that we shall not be able to go into that this
morning.

SIR DAVID MAXWELL-FYFE: I do not think so. Apart from that, there are
certain outstanding interrogatories which Counsel for the Defense may
want to refer the Tribunal to; but that is the only other matter I know.
From the point of view of the Prosecution, there may be a few documents
which will be put in more or less to clarify points that have arisen
during the case, rather than formal evidence and rebuttal. They will be
quite small in number and Will not take any time.

THE PRESIDENT: Were there any documents on behalf of the Defendant Von
Neurath which have got to be dealt with?

SIR DAVID MAXWELL-FYFE: My recollection is that there were one or two
interrogatories, but apart from that I do not know of any others.

THE PRESIDENT: Perhaps those matters had better be gone into on Monday
morning.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

THE PRESIDENT: Well, the Tribunal hopes that counsel for the defendants
understand that the Tribunal will expect them to be prepared to go on
with their speeches on behalf of the defendants directly the evidence is
finished.

SIR DAVID MAXWELL-FYFE: My Lord, it is to try to give some indication of
the time that I ventured to intervene this morning.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: As I understand it, the proposal is that
Professor Jahrreiss will make his general speech first.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: I understand the professor is ready to do that
and I thought it would be useful if it were known that that might occur
even on Monday.

THE PRESIDENT: Yes. Then, now, Dr. Fritz, perhaps you will continue with
your witness.

[_The witness Von Schirmeister resumed the stand._]

DR. FRITZ: Mr. President, Gentlemen of the Tribunal, I beg to be
permitted to continue with the examination of the witness Von
Schirmeister.

Witness, yesterday, at the end of the session, we stopped at the point
dealing with the anti-Semitism expressed by the Defendant Fritzsche in
his radio speeches; in connection with that point, I have a further
question. According to the statement made by Dr. Goebbels, to where were
the Jews evacuated?

VON SCHIRMEISTER: Up to the first year of the Russian campaign, Dr.
Goebbels in the conferences over which he presided, repeatedly mentioned
the Madagascar plan. Later he changed this and said that a new Jewish
state was to be formed in the East, to which the Jews were to be taken.

DR. FRITZ: Do you know whether, in dealing with reports from abroad
concerning alleged German atrocities, not only towards the Jews but
towards other peoples as well, Fritzsche always had inquiries made at
the RSHA or other authorities concerned?

VON SCHIRMEISTER: Yes. Not only with regard to atrocity reports but all
propaganda reports from abroad which were embarrassing to us. He made
inquiries sometimes at the office of Müller, at the RSHA in Berlin, and
sometimes he inquired of the authorities that were directly concerned in
these matters.

DR. FRITZ: And what other agencies were concerned besides the RSHA where
he might have made inquiries?

VON SCHIRMEISTER: For example, the Ministry of Food and Agriculture, the
Armament Ministry, the OKW; it all depended.

DR. FRITZ: Do you know whether in reply to such inquiries a clear and
completely plausible denial was given, or how was a matter of this sort
handled?

VON SCHIRMEISTER: There were not always denials, not at all; very
frequently we had quite precise answers. For example, if it was asserted
that there had been a strike in Bohemia-Moravia, then the answer was:
Yes, in such and such a factory a strike took place. But always and
without exception, there was a very definite denial of concentration
camp atrocities and so forth. That is precisely why these denials were
so widely believed. I must emphasize that this was our only possibility
of getting information. These pieces of information were not intended
for the public, but for the minister, and again and again the answer
came: “No, there is no word of truth in this.” Even today I do not know
by what other means we could have obtained information.

DR. FRITZ: Can you say anything about Fritzsche’s attitude on church
questions?

VON SCHIRMEISTER: Herr Fritzsche adopted the views taken by the minister
during the war. At the beginning of the war, the minister demanded
complete cessation of the strife regarding this question, for anything
which could have brought dissension among the German people would have
had a disturbing influence. I do not know whether I should go into
further details.

DR. FRITZ: No, I shall turn to another very important topic. Do you know
what reasons Goebbels gave to his assistants for the various military
actions of Germany?

VON SCHIRMEISTER: He gave no reasons of his own at all. He only added
his comments to the announcements coming from the Führer.

DR. FRITZ: To quote some examples, can you say briefly whether the
Defendant Fritzsche knew in advance that a military attack was being
planned on first, Poland; second, Belgium and Holland; third,
Yugoslavia?

VON SCHIRMEISTER: In the case of Poland, we knew of course that the
question of Danzig and the Corridor was awaiting a decision. But Dr.
Goebbels himself repeatedly assured us, and he himself believed, that
this question would not lead to war because, completely mistaken in his
view of the attitude of the Western Powers, he was convinced that they
were only bluffing and that Poland would not risk a war without the
military support of the Western Powers.

DR. FRITZ: What about Belgium and Holland?

VON SCHIRMEISTER: On the day before the attack on Belgium and Holland
events were overshadowed by the state visit of the Italian Minister
Pavolini. In the evening there was a performance at the theater and
afterwards a reception in the House of the Airmen. At night Dr. Goebbels
went with me to the ministry where he occasionally spent the night.
During the night I had to telephone to several gentlemen; and in the
morning the minister, in my presence, presented to Herr Fritzsche the
two announcements which were then broadcast, the first containing the
military reasons and the second containing the secret service reasons.
Herr Fritzsche did not even have time to look at these announcements;
moreover, he had a sore throat and I had to read the second broadcast,
with the secret service reasons; I also had not seen these announcements
beforehand.

DR. FRITZ: What about Yugoslavia?

VON SCHIRMEISTER: The same thing happened. In the evening the minister
had dismissed his adjutant, had given him leave. During the night I had
to call the various gentlemen over the phone and ask them to assemble;
and early in the morning the statement, which up to that time had been
completely unknown to us, was read to us over the radio.

DR. FRITZ: And what happened in the case of the attack on the Soviet
Union?

VON SCHIRMEISTER: That was even more preposterous. Before the attack on
the Soviet Union, the minister, for purposes of camouflage, had lied to
his own department chiefs. Around the beginning of May he selected 10 of
his colleagues out of the 20 who ordinarily participated in the
conferences, and he told them:

    “Gentlemen, I know that some of you think that we are going to
    fight Russia, but I must tell you today that we are going to
    fight England; the invasion is imminent. Please adapt your work
    accordingly. You, Dr. Glasmeier, will launch a new propaganda
    campaign against England...”

These were impudent lies told to his own department chiefs for purposes
of camouflage.

DR. FRITZ: Are you implying that no one in the Propaganda Ministry knew
of the imminent campaign against Russia?

VON SCHIRMEISTER: No. The following gentlemen in the Propaganda Ministry
knew about the Russian campaign—if I may presume, a letter to Dr.
Goebbels from Lammers offered a clue for it, for in it Lammers told the
minister in confidence that the Führer intended to appoint Herr
Rosenberg to be Minister for the Occupied Eastern Territories; the
letter also asked Dr. Goebbels to name a liaison man from our ministry
to Herr Rosenberg personally, and that, of course, gave away the secret.
The people who knew of this were the minister; Herr Hadamowsky, as his
provisional personal representative; Dr. Tauber, the liaison man to be
appointed; I, myself, because by accident I had read this letter; and
the head of the foreign press department, Dr. Böhme. Dr. Böhme, and this
is very important, told me on the day before his arrest in the presence
of Prince Schaumburg-Lippe that he had received this information from
Rosenberg’s circle, that is—and I want to emphasize this—not from our
ministry or from our minister. Otherwise, as heads of two parallel
departments, both would, of course, have been informed. If Böhme did not
know it from the minister, then Herr Fritzsche could not have known it
either. As a result of a careless remark on this subject, Böhme was
arrested on the following day and later killed in action.

DR. FRITZ: Now I want to summarize this part of my examination in the
following general question: Did you ever notice that before important
political or military actions of the Government or the NSDAP, Goebbels
exchanged ideas about future plans with the Defendant Fritzsche?

VON SCHIRMEISTER: It is quite impossible that that occurred; it would
have been in complete contradiction to the minister’s principles. Not
only did he not exchange ideas on future plans but he did not even
inform anyone.

DR. FRITZ: Now we shall turn to a different subject. The Prosecution
charges the Defendant Fritzsche with having influenced the German people
in the idea of the master race and thus with having incited hatred
against other nations. Did Fritzsche ever receive instructions at all to
conduct a propaganda campaign on behalf of the theory of the master
race?

VON SCHIRMEISTER: No, under no circumstances. In this connection, one
must know that Dr. Goebbels could not at all use this Party dogma and
myth. These are not things which attract the masses. To him the Party
was a large reservoir in which as many different sections of the German
people as possible should be united; and particularly this idea of the
master race, perhaps on account of his own physical disability, he
ridiculed and rejected completely; it did not appeal to him. Shall I
answer the question of hatred now? You also asked me about that.

DR. FRITZ: Yes.

VON SCHIRMEISTER: A propaganda of hatred against other nations was quite
contrary to the propaganda line as set out by Dr. Goebbels, for he
hoped, and to the end he clung to this hope like a _fata morgana_, that
one day he could change from the policy of “against England” and
“against America” to the policy of “with England” and “with America.”
And if one wants to do that one cannot foster hatred against a nation.
He wanted to be in line with the nations, not against them.

DR. FRITZ: Against whom then was this propaganda in the press and on the
radio directed?

VON SCHIRMEISTER: Primarily, against systems; it was Dr. Goebbels who
established the concept “plutocracy” in the sense in which the whole
world knows it today, later the concept “Bolshevism” was added from the
other side. Sometimes his propaganda was directed against some of the
men in power; but he could not get the full co-operation of the German
press on that point. That annoyed him; and in a conference he once said,
“Gentlemen, if I could put 10 Jews in your place, I could get it done.”
But later he stopped these attacks on personalities such as Churchill;
he was afraid that these men would become too popular as a result of his
counterpropaganda. Apart from that he did not hate Churchill personally
at all, secretly he actually admired him; just as, for example,
throughout the war he had a picture of the Duke of Windsor on his desk.
Therefore the propaganda of hatred was directed temporarily against
individual men but always against systems.

DR. FRITZ: Witness, before answering the next question, will you check
your memory very carefully, and particularly remember your oath. Was it
the aim of this propaganda for which Fritzsche received orders and which
he carried out, to arouse unrestrained passions tantamount to incitement
to murder and violence, or what was its purpose?

VON SCHIRMEISTER: No. The minister could not use passions at all in his
propaganda, for passions flare up and die down again. What the minister
did need was a steady and constant line, steadfastness even in hard
times. Stirring up of passions, inciting to hatred, or even murder would
not have appealed to the German people nor could Dr. Goebbels use
anything like that.

DR. FRITZ: Did German propaganda abroad, especially in Russia, come
under the direction of the Propaganda Ministry at all?

VON SCHIRMEISTER: I must differentiate here. I do not know whether I
should go into the well-known differences between Dr. Goebbels and
Ribbentrop. At the beginning of the war the Foreign Office had demanded
charge of all foreign propaganda, namely, propaganda in foreign
countries, radio propaganda broadcasts to foreign countries, and,
propaganda directed towards foreigners living in Germany. Very
disagreeable controversies resulted; the problem was put to the Führer
himself, but finally both sides interpreted his decision in their own
favor.

DR. FRITZ: Witness, would you, perhaps, be a little more brief?

VON SCHIRMEISTER: Very well, I can leave that. The differences between
the two men are well known. However, in regard to Russia, I must add
that there both press and propaganda came under the jurisdiction of Herr
Rosenberg up to about March of 1944. And in this sphere as well, Dr.
Goebbels...

THE PRESIDENT: Wait a minute, wait a minute. What has this Russian
propaganda got to do with the defendant?

DR. FRITZ: No; the German propaganda in Russian territory—that is what
I asked him about. He is only going to say one sentence about it; in
fact, he has already said it.

VON SCHIRMEISTER: Up to 1944, Rosenberg—to the great concern of Dr.
Goebbels who believed that the Russian campaign could have been won in
the field of propaganda.

DR. FRITZ: I have one more question to put to you.

Yesterday, when Herr Fritzsche was being cross-examined, the Prosecution
submitted several interrogation records; among them, for example, that
of Field Marshal Schörner, in which the testimony is unanimous in saying
that Fritzsche was the permanent deputy of Goebbels as Propaganda
Minister. Is that correct?

VON SCHIRMEISTER: That is bare nonsense. I cannot imagine how a
statement like that came to be made. There is not a word of truth in it.

DR. FRITZ: Thank you. Mr. President, I have no further questions.

THE PRESIDENT: Does any of the other defendants’ counsel want to ask any
questions of the witness?

[_There was no response._]

Does the Prosecution wish to cross-examine?

GEN. RUDENKO: Mr. President, the Prosecution do not intend to question
this witness; but this does not mean that we accept without objection
the testimony which he has given here.

THE PRESIDENT: The witness may retire.

DR. FRITZ: Mr. President, I should like to point out and request the
Tribunal to take judicial notice also of the documents which are
contained in both my document books but which I did not quote. In my
Document Book Number 2 there is another affidavit deposed by Dr.
Scharping, a document which I offer to the Tribunal as Document Number
Fritzsche-3, Pages 16 to 19. This affidavit deals with the attitude of
the Defendant Fritzsche on measures which Hitler had planned after the
large-scale air attacks on the city of Dresden. May I ask the Tribunal
to take judicial notice of the entire contents of this affidavit, on
Page 16 and the following pages, Document Book Number 2.

THE PRESIDENT: Dr. Fritz, the Tribunal observe that in Exhibit 3, which
you have just presented to us, there is a statement by the person making
the affidavit that after the bombing of German cities in the fall of
1944, “Dr. Goebbels stated that there was no longer any objection to
handing over crew members of crashed airplanes to the wrath of the
people.”

The Tribunal would like to have the Defendant Fritzsche back in the
witness box and to question him about that.

Did you ask any questions of the Defendant Fritzsche in reference to
this matter in your examination of him?

DR. FRITZ: No, Mr. President, I expected—I wanted to say at the
conclusion of my case that I had expected a statement on this subject
from the representative of the protecting power, the Swiss Ambassador in
Berlin. This statement has, however, not yet reached me. I wanted to ask
permission to submit it later if it arrives in time.

THE PRESIDENT: Is that another interrogatory or affidavit that you mean?

DR. FRITZ: Yes, it is a statement which deals with this subject.

THE PRESIDENT: Yes.

DR. FRITZ: And if I may be permitted to add this, Mr. President, I also
expect a statement from a British radio commentator, Clifton Delmar.
That statement has not yet arrived. May I perhaps submit that?

THE PRESIDENT: Certainly, you may. But what the Tribunal is concerned
with at the moment is that they think it material that they should
know...

DR. FRITZ: Yes, I quite understand, Mr. President.

[_The Defendant Fritzsche resumed the stand._]

THE PRESIDENT: You are still under oath. You may sit down.

You have read this affidavit?

FRITZSCHE: But I no longer remember it in detail.

THE PRESIDENT: We did not hear the answer to that.

FRITZSCHE: I no longer recall in detail this affidavit which my counsel
has just submitted to the Tribunal. I know that it exists, however.

THE PRESIDENT: The statement that the Tribunal wished you to be asked
about was this:

    “Beginning in the fall of 1944, Dr. Goebbels also spoke about
    this frequently during his so-called conferences of
    ministers...”

I’ll begin before that:

    “The increasing effect of English and American air bombardments
    on German cities caused Hitler and his more intimate advisers to
    seek drastic measures of reprisal. Beginning in the fall of
    1944, Dr. Goebbels also spoke about this frequently during his
    so-called conferences of ministers, to which numerous officials
    and technicians of his ministry were convened and which, as a
    rule, I also attended.”

That is Franz Scharping?

FRITZSCHE: Yes.

THE PRESIDENT:

    “On such occasions Dr. Goebbels stated that there was no longer
    any objection to handing over crew members of crashed planes to
    the wrath of the people.”

As you know, there has been a great deal of evidence about that before
this Tribunal. Did you in your propaganda speeches make any references
to this subject?

FRITZSCHE: No, I never advocated in my propaganda speeches that the
crews of aircraft which had been shot down should be killed. On the
other hand, I know that Dr. Goebbels, for reasons of intimidation,
ordered reports to be sent abroad already in the fall of 1944, reports
to the effect that, to quote an example, an Anglo-Saxon airplane which
had machine-gunned church-goers in the street on a Sunday had been shot
down and the members of the crew had been lynched by the people.
Actually this report had no factual basis; it hardly could have been
true, since it is quite improbable that an airplane is shot down at just
such a moment.

I know that Dr. Goebbels, through a circular letter addressed to the Gau
Propaganda Offices, asked that details of such incidents, if they
actually occurred, should be transmitted to him; but to my knowledge he
did not receive any factual details of this sort. That was also the time
in which he had an article on this subject written in Reich; I cannot
recall the title of this article at the moment. In any event, this
campaign, having died down in January or February, flared up again in
the days after the air attack on Dresden, and the following incident
occurred. Dr. Goebbels announced in the “11 o’clock morning conference,”
which has been mentioned quite frequently in this courtroom, that in the
Dresden attack 40,000 people had been killed. It was not known then that
the actual figure was a considerably higher one. Dr. Goebbels added that
in one way or another an end would now have to be put to this terror;
and Hitler was firmly determined to have English, American, and Russian
flyers shot in Dresden in numbers equal to the figure of Dresden
inhabitants who had lost their lives in this air attack. Then he turned
to me and asked me to prepare and announce this action. There followed
an incident: I jumped up and refused to do this. Dr. Goebbels broke off
the conference, asked me to come to his room, and there a very heated
discussion developed between us.

Finally I had persuaded him at least to the point where he promised me
to use his influence with Hitler himself, so that this plan would not be
carried through. I then spoke to Ambassador Rühle, the liaison man of
the Foreign Office and asked him to enlist the aid of his minister to
the same end. I also requested State Secretary Naumann to speak along
the same lines with Bormann, whose predominant influence was well known.

Following that, I had a discussion—under the existing regulations this
was not really permitted—with the representative of the protecting
power. In confidence, I gave him certain indications about the plan of
which I had heard and asked him whether he could suggest or supply me
with some argument or some means for countering this plan more
intensively.

He said he would attend to the matter with the utmost speed and he
called me up on the following morning. We had a second discussion, and
he told me that in the meantime a prospect for an exchange of prisoners
had been held out to him—that is, an exchange of German and English
prisoners—to comprise, I believe, 50,000 men.

I asked him to have this matter go through the normal diplomatic
channels, but to permit me to discuss this possibility of an exchange of
prisoners of war with Dr. Goebbels, Naumann, and Bormann. I did so, and
since just at that time the leaders were obviously especially interested
in returning prisoners of war who could perhaps still be used at the
front, this prospective offer...

THE PRESIDENT: How did you think that this possible exchange of
prisoners was going to affect the question of whether 40,000 English and
American, and Russian fliers would be killed as a reprisal?

FRITZSCHE: It appeared to me that at a time when we had the opportunity
of effecting an exchange of prisoners of war, all thought of an action
which was quite outside all human laws had to be repressed; that is, if
there was talk about an exchange of prisoners of war, the idea of a
gigantic shooting of prisoners had to be shunted into the background.

I conclude briefly. This plan was discussed. I told Dr. Goebbels about
it; and it was discussed in the evening with Hitler, according to
concurring reports which I had from two different sources. By some
strange accident the offer itself ran aground somewhere along the
bureaucratic channels many days after the settlement of this exciting
incident.

THE TRIBUNAL (Mr. Biddle): Can you hear now? I am asking you when you
heard about Hitler’s order, not with respect to these prisoners, but
with respect to the fliers who had landed? When did you first hear of
that? You said that in the fall Goebbels had sent abroad some propaganda
with respect to that order. Did you know about it then?

FRITZSCHE: Yes.

THE TRIBUNAL (Mr. Biddle): In the autumn of 1944 you knew about that
order?

FRITZSCHE: No.

THE TRIBUNAL (Mr. Biddle): When did you?

FRITZSCHE: I cannot say exactly, but in the autumn of 1944 I did not
know this order. I have to be extremely careful since I am under oath. I
believe I heard of the order only here in this courtroom, but that is
somewhat confused in my memory with the campaign of Dr. Goebbels which I
have just described. I cannot clearly...

THE TRIBUNAL (Mr. Biddle): Surely in that meeting in February that order
was discussed when they were discussing the killing of 40,000 prisoners,
was it not?

FRITZSCHE: No, on that occasion not at all.

THE TRIBUNAL (Mr. Biddle): You had no doubt that Hitler wished to have
those prisoners killed, did you?

FRITZSCHE: Yes, at the time when Dr. Goebbels related the plan, I
believed that Hitler wished to carry through this action.

THE TRIBUNAL (Mr. Biddle): Then the answer is “yes.” Now, you had no
doubt that Goebbels wanted them killed, did you?

FRITZSCHE: The 40,000 in Dresden?

THE TRIBUNAL (Mr. Biddle): Yes.

FRITZSCHE: In general, yes.

THE TRIBUNAL (Mr. Biddle): Yes.

FRITZSCHE: Yes, I had no doubt that Goebbels also approved it.

THE TRIBUNAL (Mr. Biddle): And which other of the leaders wished them
killed? It was apparently discussed a good deal; who else in the
Government was in favor of this policy?

FRITZSCHE: I cannot say with certainty whether Bormann was in favor of
it; he was the only other concerned. I do know, however, that Von
Ribbentrop, through Ambassador Rühle, made an attempt to dissuade Hitler
from this step. He opposed Hitler’s plan.

THE TRIBUNAL (Mr. Biddle): Ribbentrop was working in this particular
problem of killing the prisoners? I am not clear about that. Did
Ribbentrop know about it?

FRITZSCHE: At that time I told Ambassador Rühle about this affair and
asked him to inform Ribbentrop and to enlist his aid. A day or two later
Rühle told me—we had frequent excited telephone conversations on this
matter—that Ribbentrop was...

THE TRIBUNAL (Mr. Biddle): I do not need the details. The answer is that
the Foreign Office knew, even if Ribbentrop may not have known
personally. Is that right?

FRITZSCHE: Ribbentrop was informed personally.

THE TRIBUNAL (Mr. Biddle): That is all I want to know.

FRITZSCHE: Yes.

THE TRIBUNAL (Mr. Biddle): Do you know what attitude Bormann took in
this matter?

FRITZSCHE: According to the accounts that I heard, he at first supported
Hitler’s plan to shoot those 40,000; but afterwards, under the influence
of Goebbels and Naumann, he took the opposite view and co-operated in
dissuading Hitler from his intention.

THE TRIBUNAL (Mr. Biddle): Were they only consulted in the matter as far
as the commanders of the Wehrmacht were concerned?

FRITZSCHE: I know nothing about that.

THE TRIBUNAL (Mr. Biddle): It is suggested that I should also ask you
this: Do you know what attitude Ribbentrop took on the shooting of these
prisoners?

FRITZSCHE: Yes. After Ambassador Rühle’s report to him, he used his
influence to prevent the execution of Hitler’s plan; in what way, I do
not know.

THE PRESIDENT: Dr. Fritz, do you wish to ask the defendant any question?

DR. FRITZ: No, Mr. President.

THE PRESIDENT: Do the Prosecution wish to ask any questions arising out
of the questions that the Tribunal has asked?

GEN. RUDENKO: No, Mr. President.

THE PRESIDENT: Then the defendant can return to the dock.

DR. FRITZ: Mr. President, this brings me to the end of the evidence in
the case of the Defendant Fritzsche.

THE PRESIDENT: Are you offering in evidence all of the documents in your
two document books, each one of them?

DR. FRITZ: Yes.

THE PRESIDENT: Are they marked with exhibit numbers?

DR. FRITZ: Yes, I submitted all the originals.

THE PRESIDENT: Very well. Have you not got two Exhibits 1; Exhibit 1 in
one book and Exhibit 1 in the other book?

DR. FRITZ: No, there are no Fritzsche exhibits at all in my Document
Book 1, Mr. President.

THE PRESIDENT: Oh! I see. Very well. Well, that concludes the case of
Fritzsche?

DR. FRITZ: Yes, Mr. President.

THE PRESIDENT: The Tribunal will adjourn now.

                        [_A recess was taken._]

DR. BERGOLD: May it please the Tribunal, first of all I want to say that
I can also dispense with the witness Dr. Klöpfer, since he worked in
close contact with Bormann only after 1942, since he cannot testify on
most of the documents on which the Prosecution based its case, and since
he only directed the constitutional law department in the Party
Chancellery.

Mr. President, I want to begin my case by making a very brief basic
statement. The Defendant Bormann is absent; his associates, generally
speaking, are not at my disposal either. For that reason, I can only
attempt, on the basis of the documents presented by the Prosecution, to
submit some little evidence to prove that the defendant did not play the
large, legendary part which is now, after the collapse, attributed to
him. As a lawyer it has always been much against my will to build
something out of nothing; and I beg the High Tribunal to take this into
consideration when weighing my evidence, which must, therefore, be
extremely small in quantity. It is not negligence on my part that I
present so little, but it is the inability to find anything positive
from the available documents without the assistance of the defendant.

First of all, then, I come to the question of whether the case against
Bormann can be tried at all. I have offered evidence to show that it is
most likely that the Defendant Bormann died on 1 May 1945, during an
attempted escape from the Reich Chancellery. As my first witness who
could testify on this, I named the witness Else Krüger, and my
application for her was granted by the Tribunal. In my application of 26
June, I stated that I would waive the examining of this witness if the
High Tribunal would permit me to submit instead an affidavit containing
her testimony. I have not yet received an answer to this application;
but I presume, since I heard from Dr. Kempner that the Prosecution will
agree to this, that the High Tribunal also will not raise any objection.

THE PRESIDENT: I thought the application was withdrawn with reference to
the witness Krüger.

DR. BERGOLD: I stated that I would dispense with the witness provided
that I could submit her affidavit. There appears to be a
misunderstanding. The Prosecution informed me that it has no objection.

MR. DODD: We have said we had no objection, Mr. President, to the use of
the affidavit since he was waiving the calling of the witness.

DR. BERGOLD: I submit the affidavit as Document Number Bormann-12.

Then, I named three other witnesses who could testify that Bormann had
died. First, the witness Kempka, who for many years was Hitler’s
chauffeur and who was present when the attempted escape from the Reich
Chancellery failed. This witness is not here. According to information
which I have, he was interned at the camp at Freising in December 1945
in the hands of the American authorities; but unfortunately he has not
yet been produced.

I also named the witness Rattenhuber, who was also present when Bormann
died and who, according to the information which I have, is said to be
in the hands of the U.S.S.R.

The woman witness, Christians, who had been, granted me, could not be
located. She was interned in the camp at Oberursel; from there she was
given leave of which she took advantage to vanish. Apart from the
affidavit of the witness Krüger, therefore, I have no proof for my
statement that Bormann is dead. I regret very much indeed that I am not
in a position to present clear evidence on this point and that the
members of the Prosecution were not able to give me more support, for in
this way the formation of legends will be considerably strengthened.
Indeed, a sort of false Demetrius, false Martin Bormann, have already
made their appearance and are sending me letters which are signed Martin
Bormann but which cannot possibly have been written by him. I believe
that a service would have been rendered to the German nation, to the
Allies, and to the world generally if I had been in a position to
furnish this proof for which I had asked.

I come now to my documents.

THE PRESIDENT: Well, the Tribunal would like to hear this affidavit of
Krüger read.

DR. BERGOLD: The text is as follows:

    “Fräulein Else Krüger, born 9 February 1915, at Hamburg-Altona;
    secretary, at present residing at Hamburg (39), Hansenweg 1...
    From approximately the end of 1942 was one of several
    secretaries of the Defendant Martin Bormann; there were,
    roughly, 30 to 40 secretaries. I can no longer give accurate
    figures and names. I occupied this position until the end and
    after Hitler’s death.

    “On 1 May 1945 I saw and talked to Bormann in the bunker of the
    Reich Chancellery for the last time; but I was then no longer
    working for him, since at that time he was writing his own
    orders and wireless messages by hand. All I had to do in those
    days in the bunker of the Reich Chancellery was to prepare
    myself mentally for my death. The last words he spoke to me,
    when he met me accidentally in the bunker, were, ‘Well, then,
    farewell. There is not much sense in it now, but I will try to
    get through. Very probably I shall not succeed.’ These
    approximately, were his last words, I can no longer recollect
    them literally.

    “Later in the course of the evening when I thought that the
    Russians had come very close to the shelter of the Reich
    Chancellery I, together with a group of about 20 people, mostly
    soldiers, fled from the shelter through subterranean passages,
    then through an exit in one of the walls of the Chancellery,
    across the Wilhelmsplatz into the entrance of the underground
    station Kaiserhof. From there we fled through more subterranean
    passages to the Friedrichstrasse, and then through a number of
    streets, debris of houses, and so on; I can no longer remember
    the exact details on account of the confusion and excitement of
    those days. Eventually, in the course of the following morning,
    we reached another shelter; I no longer recollect where it was;
    it might have been the shelter at Humboldthain.”

THE PRESIDENT: Dr. Bergold, does not the affidavit deal with the
Defendant Bormann at all?

DR. BERGOLD: Oh yes, I am now coming to that:

    “After some time the SS-Gruppenführer Rattenhuber appeared there
    quite suddenly. He had been severely wounded in the leg and was
    put on a camp bed. Other people asked him where he had come
    from; and he said, in my presence, that he, together with
    Bormann and others, had fled by car through the
    Friedrichstrasse. Presumably everybody was dead; there had been
    masses of bodies. I gathered from his statement that he believed
    Bormann was dead. This also appeared probable to me because,
    according to reports I heard from some soldiers whom I did not
    know, all people who had left the shelter after us had been
    taken under strong Russian fire and hundreds of dead were said
    to have been left behind on the Weidendammer Bridge.”

I omit one unimportant sentence.

    “I remember reading afterwards in a British paper that Hitler’s
    driver for many years, Kempka, made a statement somewhere that
    Bormann, with whom apparently he fled, was dead.”

That is all I am able to submit, Mr. President; the real witnesses have
unfortunately not been found.

I now come to the documents. In order to shorten my evidence, may I
refer to the document book which I have submitted. All these documents
contain orders of Bormann which were collected and have appeared in a
body of laws called _Orders of the Deputy of the Führer_. I request that
the Tribunal take judicial notice of these official orders. I shall
bring up the legal argument arising from these documents in my final
speech.

I merely want to refer now briefly to Order Number 23/36; it is the
order under the figure 8.

THE PRESIDENT: Do you mean PS?

DR. BERGOLD: No, it is order Number 8 in my document book, Mr.
President. I particularly want to draw the Tribunal’s attention to it
without quoting from it.

I now turn to the document book submitted by the Prosecution, and I
should like to read a short passage from 098-PS, on Page 4, the second
paragraph at the top.

THE PRESIDENT: Did you say 098-PS?

DR. BERGOLD: Yes, Document 098-PS, Bormann’s letter dated 22 February
1940 and addressed to Reichsleiter Alfred Rosenberg.

THE PRESIDENT: Page 4?

DR. BERGOLD: Page 4. It is the letter in which Bormann rails against the
Christian religion. Nevertheless, he writes as follows, Page 4:

    “With regard to religious instruction in schools it seems to me
    that the existing conditions need not be changed. No National
    Socialist teacher, according to the clear-cut directives of the
    Deputy of the Führer, must be accused in any way, if he is
    prepared to teach the Christian religion in the schools.”

I omit one sentence.

    “In the circular of the Deputy of the Führer Number 3/39, of 4
    January 1939, it is expressly stated that teachers of religion
    are not by any means to make their own choice of Biblical
    material for religious instruction but are obliged to give
    instruction on all the Biblical subjects. They are to abstain
    from all reinterpreting, analyzing, or paraphrasing of this
    directive; attempts of this sort have been made several times by
    certain church groups.”

This is a reference to the so-called German Christians.

I then quote from Document 113-PS, document book of the Prosecution. It
is Directive Number 104/38, I quote:

    “The neutrality of the Party with respect to the Church, which
    has been emphasized from the beginning, demands that any
    possible friction be avoided. Clergymen, as political leaders or
    as leaders or section leaders in the Party and its affiliated
    organizations, do not possess the required freedom of decision
    in this dual obligation, as has been shown by experience;
    moreover, there is the danger that owing to their church office
    they will make use of the Movement for their purposes in the
    church struggle. The Deputy of the Führer has therefore ordered:

    “1. Clergymen holding positions in the Party are to be
    immediately relieved of their Party functions.”

I then quote from Document 099-PS, in which Bormann, in a letter of 19
January 1940, addressed to the Reich Minister of Finance, criticizes the
low contributions of the Church toward the war. I quote from the second
paragraph:

    “The assessment of so low a contribution has surprised me. I
    gather from numerous reports that the political communities have
    to raise so high a war contribution that the carrying out of
    their own tasks, which are often very important, as for instance
    their work in public welfare, is in jeopardy.”

I omit one sentence.

    “I understand that the assessment of so low a contribution is
    partly explained by the fact that only the churches of the old
    Reich which are entitled to raise taxes are called upon to make
    their contribution to the war, whereas the sections of the
    Protestant and Catholic Church, which are entitled to demand
    church dues in Austria and the Sudetenland, are exempted...”

I omit the rest of the sentence.

    “This differentiation in the treatment of individual sections of
    the churches and church organizations is, in my opinion, quite
    unjustified.”

I then quote from Document 117-PS, a letter from Bormann to Rosenberg,
dated 28 January 1939. I quote from the second paragraph:

    “The Party has repeatedly in recent years had to explain its
    attitude on the plan for a State Church or for some other
    measure establishing closer connection between the State and the
    Church. The Party has always emphatically rejected such plans
    for two reasons. First, a connection between the State and the
    Church, as the organization of a religious community which does
    not in all fields aim at the practical application of National
    Socialist principles, would not fulfill the ideological demands
    of National Socialism. Second, purely practical and political
    considerations speak against such a formal union.”

I then refer to Document L-22, which deals with a conference in the
Führer’s headquarters on 16 July 1941, at which Hitler, Rosenberg,
Lammers, Keitel, Göring, and Bormann were present.

THE PRESIDENT: Could you tell us in what part of the book this is and
what is the number?

DR. BERGOLD: L-22. It is approximately in the middle of the book.
Bormann acted as secretary of the conference and wrote the minutes. The
Prosecution stated that Bormann’s incidental remarks showed that he had
participated in the discussion, at that conference, of plans for the
incorporation of Russian territory into the Reich. I shall therefore
have to read this incidental remark which he made.

THE PRESIDENT: This is L-221, not L-22.

DR. BERGOLD: The first incidental remark is in the 14th paragraph and
reads as follows:

    “Incidentally, does an educated class still exist in the
    Ukraine, or are the Ukrainians of a higher class to be found
    only as emigrants outside Russia?”

THE PRESIDENT: Dr. Bergold, could you not tell us what original page it
is? In our document book there are headings “original page” so and so.

DR. BERGOLD: Yes, they are there, but—one moment, please, I shall have
to look for it again. The translation which I have received has a
different type of division—Page 4.

THE PRESIDENT: Thank you.

“We have to create a garden of Eden....” The first part of Page 4 is,
“We have to create a garden of Eden....”

DR. BERGOLD: Yes, yes, yes, the second paragraph, the third paragraph,
no, after each one—it is the third paragraph.

THE PRESIDENT: Go on, then.

DR. BERGOLD: Have you got it, Mr. President?

THE PRESIDENT: I shall not know until you tell me how it begins.

DR. BERGOLD: It begins, “Incidentally, does an educated class still
exist in the Ukraine...?”

THE PRESIDENT: Yes, I have got that, yes. Page 3.

DR. BERGOLD: It is on Page 3.

THE PRESIDENT: I think it is on Page 4. It goes like this: “Is there
still anything like an educated class in the Ukraine?”

DR. BERGOLD: According to the document book which has just been
submitted to me, it is on Page 3, but it may be Page 4.

THE PRESIDENT: The original is Page 4.

DR. BERGOLD: Then on Page 5, Page 4, no, it is Page 3, Your Lordship.
Page 4 has a very similar remark which reads:

    “It has frequently become apparent that Rosenberg has a great
    deal of liking for the Ukrainians. He wants to enlarge the old
    Ukraine considerably.”

And then the last remark on Page 8—Page 5 in the English text, third
paragraph from the end, a note for Party member Klöpfer:

    “Please ask Dr. Meyer as soon as possible for the data on the
    proposed organization and the filling of the positions.”

Then at the end, Page 6 of your original, last paragraph:

    “Incidentally, the Führer emphasized that activity of the
    churches was out of the question. Papen had already submitted to
    him through the Foreign Office a long memorandum stating that
    now the right moment for re-establishing the churches had
    arrived. But that was definitely out of the question.”

This refers to a statement by Hitler.

Then I come to Document 1520-PS. I want first of all to draw the
Tribunal’s attention to the fact that in this record, which Lammers
wrote, Bormann is not at all mentioned at the beginning among those
present, apparently because his activity as secretary was considered a
matter of course.

I should now like to read from Page 2 of your original, from the
paragraph beginning, “Then the discussion turned to the question of
freedom of religion...” I shall begin on the eighth line of the fourth
paragraph:

    “Bormann agreed with this attitude absolutely but said that the
    only question was whether the Reich Minister for the East, who
    after all had a name in Germany, would not through such a law
    create too far-reaching obligations which would then have
    repercussions in the Reich. The churches themselves were going
    to define what was meant by ‘religious freedom,’ and he
    predicted that such a law would result in hundreds of new
    letters and complaints on the part of the churches within the
    Reich.”

I omit one sentence.

    “Finally it was agreed that the entire question should not be
    settled by me”—that is, Lammers—“in the form of a law but that
    the Reich Commissioners should take the existing religious
    freedom for granted and should issue the necessary directives.”

Then Document 072-PS, a letter from Bormann to Rosenberg; of that I
should like to read the third paragraph:

    “The Führer emphasized that in the Balkans the use of your
    experts would not be necessary, since there were no art objects
    to be confiscated. In Belgrade there was only the collection of
    Prince Paul which would be returned to him intact. The remaining
    material of the lodges, _et cetera_, would be taken care of by
    the representatives of Gruppenführer Heydrich.”

From Document 062-PS I should like to read the introduction, in which
the Defendant Hess deals with the orders he had issued for the treatment
of airmen. I quote:

    “The French civilian population received official instructions
    by radio and otherwise on what they were to do at landings of
    German aircraft.”

From Document 205-PS I should like to read the opening words of Bormann,
the second paragraph.

THE PRESIDENT: What, is the date of 062-PS? [_The interpreter wrongly
translated this as 205-PS._]

DR. BERGOLD: 5th of May 1943, circular letter Number 70/43.

THE PRESIDENT: I think I have got it now.

THE INTERPRETER: You have 205, My Lord.

DR. BERGOLD: 5th of May 1943.

THE PRESIDENT: No, but I wanted to know the date of 062-PS. It appears
to be 13 March 1940.

DR. BERGOLD: 062-PS? Yes, the date of that is 13 March 1940. That is the
one I read before.

THE PRESIDENT: The Tribunal does not understand why you read the
document in view of Paragraph 4 of it which is as follows:

    “Likewise, enemy parachutists are immediately to be arrested or
    liquidated.”

DR. BERGOLD: I shall return to that in my final speech, Mr. President. I
can present my arguments now if the Tribunal so desires, but I do not
think the argument is wanted now.

THE PRESIDENT: No, no; I thought you might have another paragraph in the
document which you wish to refer to.

DR. BERGOLD: No. I referred to the introduction, which was the reason
for this document, namely, the statement of the Defendant Hess preceding
Bormann’s document.

I come then to Document 205-PS, dated 5 May 1943, circular letter Number
70/43. I shall quote the following sentence:

    “I request that along the lines set out in the attached copy the
    necessity for a firm but just treatment of the foreign workers
    be made clear in a suitable manner to members of the Party and
    the population.”

This circular letter itself was issued by the Defendant Sauckel. I now
come to Document 025-PS, of 4 September 1942 and I read...

THE PRESIDENT: Which number are you going to now?

DR. BERGOLD: 025-PS, dated 4 September 1942. I shall quote the last
sentence of the second paragraph:

    “Therefore, and this is also the opinion of the Reich Marshal
    and of Reichsleiter Bormann, the problem of domestic workers
    must be solved in a way different from that mentioned above.”

And then I quote from Paragraph 3, starting with the second sentence:

    “In connection with this”—namely, the employment in Germany of
    women workers from the East—“Reichsleiter Bormann also agrees
    that members of the Armed Forces or other agencies who have
    brought female domestic workers into the Reich illegally will
    have their action subsequently approved; approval of such action
    in the future will not be withheld, regardless of the official
    recruiting scheme. The determining factor in the recruiting of
    Ukrainian female workers is the specific wish of the Führer that
    only girls whose conduct and appearance permit a permanent stay
    in Germany should be brought into the Reich.”

Then I shall read from Figure 1, almost the last paragraph on Page 3 of
your document book:

    “Recruiting, especially in the case of domestic servants, must
    be on a voluntary basis and must in practice be carried out with
    the help of the offices of the Reichsführer SS.”

This concludes my quotations from the document book of the Prosecution,
and I should like now to refer only to the Russian Document USSR-172 and
to Document Dönitz-91, of which I shall make use in my final speech.

This, then, brings me to the end of the presentation of my evidence.

MR. DODD: Mr. President, may I suggest that if this witness Kempka can
be located, counsel might submit an affidavit or an interrogatory to any
persons who have knowledge of the alleged death of Defendant Bormann. We
certainly would have no objection to it.

DR. BERGOLD: I have no objection either.

THE PRESIDENT: Dr. Bergold, have you any information as to what this
witness Kempka can tell us about the death of Bormann?

DR. BERGOLD: According to the affidavit, which I read to the Tribunal,
he is said to have been present when Bormann was killed by a tank
explosion. He would, therefore, be an eye witness of Bormann’s death,
like the witness Rattenhuber, from whom the witness Krüger obtained her
information. If the witnesses Kempka and Rattenhuber were found, I would
be satisfied with affidavits and interrogatories.

MR. DODD: Mr. President, I have seen this statement by Kempka some time
ago, which is in affidavit form and which has come to our attention. But
my recollection is that he does not state positively that he saw him
die. But I again suggest we might make further efforts to get an
affidavit from him, or an interrogatory, or carefully question him about
the circumstances of the death.

THE PRESIDENT: A statement was made to the Tribunal at one time by the
Prosecution suggesting that Bormann had escaped from the Chancellery in
a tank and then the tank had been stopped or blown up on a bridge and
that two of the persons inside the tank had last seen Bormann wounded,
or something of that sort.

MR. DODD: Yes, I think that is the best information.

THE PRESIDENT: Mr. Dodd, if the Prosecution has any material in the
shape of affidavits or anything of that sort, the Tribunal would like to
have them placed before them.

MR. DODD: Yes, Sir. I am sure we do not have an affidavit. As I recall,
it was last fall when someone sent down here what purported to be a
narrative account by Kempka of the last days in Berlin. Now, I will try
to look that up and present it to you.

THE PRESIDENT: If you can go into the matter, then possibly they might
be located through the investigations which you would make.

MR. DODD: Very well.

THE PRESIDENT: Then interrogatories or affidavits could be obtained.

MR. DODD: Very well, Sir.

THE PRESIDENT: Then that concludes your presentation of evidence on
behalf of Bormann?

DR. BERGOLD: That is all I have, Mr. President.

THE PRESIDENT: Very well. Thank you.

Colonel Pokrovsky, is there anything you wish to say? I beg your pardon.

Dr. Bergold, you have offered in evidence all the exhibits that you want
to offer and have given them exhibit numbers, have you?

DR. BERGOLD: Yes, in my document book.

THE PRESIDENT: You are intending to offer your document book as
evidence?

DR. BERGOLD: Yes.

THE PRESIDENT: It has exhibit numbers on each document, has it?

DR. BERGOLD: Yes, each document has a number.

THE PRESIDENT: Very well.

Colonel Pokrovsky, the Tribunal would like to know whether you have
arrived at any agreement with Dr. Stahmer on behalf of the Defendant
Göring with reference to affidavit evidence or witnesses, with reference
to the Katyn matter.

COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): My
Lord, we have had three conferences with the Defense Counsel. After the
second meeting I told the Tribunal that, in order to shorten the
proceedings, the Soviet Prosecution was willing to read into the record
only a part of the evidence submitted. About 15 minutes ago I had a
meeting with Dr. Exner and Dr. Stahmer, and they told me that their
understanding of the Tribunal’s ruling was that the old decision for the
summoning of two witnesses was still in force and that only additional
documents were now under discussion.

In view of this interpretation of the Tribunal’s ruling, I do not think
that we shall be able to come to an agreement with the Defense. As I see
it, the decision in this matter must now rest in the hands of the
Tribunal.

THE PRESIDENT: The Tribunal orders that, unless an agreement is arrived
at, the evidence shall not be given entirely by affidavits and that the
three witnesses on either side shall be called first thing on Monday
morning at 10 o’clock, unless you can arrive at an agreement before
that, that the evidence is to be offered in affidavits.

DR. SIEMERS: Mr. President, may I say something on this subject?

A number of counsel who are interested in the Katyn case had a
conference this morning; among them were Professor Exner and Dr.
Stahmer. We agreed to ask the Tribunal to allow two witnesses to be
examined here in person by the Defense. These witnesses would be Colonel
Ahrens and First Lieutenant Von Eichborn. We also agreed to dispense
with the hearing of the third witness but decided to request that an
affidavit of this witness, and in addition two other affidavits, be
submitted. I believe this to be a suggestion which both satisfies us and
saves the most time: Two witnesses would be heard and three affidavits
submitted.

THE PRESIDENT: Dr. Siemers, the Tribunal sees no objection to there
being two witnesses called and one affidavit. But their order was that
three witnesses on either side—that the evidence should be limited to
three witnesses on either side; and they, therefore, are not prepared to
allow further affidavits to be given. The evidence must be confined to
the evidence of three persons on either side. They may give their
evidence either by oral evidence or by affidavit.

DR. SIEMERS: Mr. President, as far as I was informed, the original
decision stated that three witnesses were allowed but did not mention
affidavits. That was the reason why Dr. Stahmer and Professor Exner
assumed that, regardless of the witnesses, certain individual points
could be proved by means of affidavits. I think that the hearing of two
witnesses and three affidavits would be quicker than the examination of
three witnesses.

THE PRESIDENT: I am afraid Dr. Stahmer and Dr. Exner drew a wrong
inference from the order of the Tribunal. The Tribunal intended and
intends that the evidence should be limited to the evidence of three
witnesses on either side, and whether they give their evidence orally or
by affidavit does not matter. We left it to the Soviet Prosecution and
to defendant’s counsel to see whether they could agree that it should be
given by affidavit in order to save time. But that was not intended to
extend the number of witnesses who might give evidence.

DR. SIEMERS: Mr. President, in that case, I should be grateful if Dr.
Stahmer and Professor Exner would be heard. I myself have not been in
Nuremberg recently; I was therefore not present when these details were
discussed and it is difficult for me—I see that Dr. Stahmer is
now—perhaps Dr. Stahmer himself could speak about it.

DR. STAHMER: I have just heard Dr. Siemers’ report, at least a part of
it. I mentioned already during the last discussion, Mr. President, that
Professor Exner and I had understood the decision to mean that besides
the three witnesses we were also allowed to submit affidavits. Indeed,
the original decision granted us five witnesses, though it made the
reservation that only three of them could give evidence here in Court.
We assumed, therefore, that we could submit affidavits of those
witnesses out of the five who had been originally granted us but who
would not give evidence in Court. The original decision granted us five
witnesses, and then a later decision of the Tribunal...

THE PRESIDENT: Listen, that is not the recollection of the Tribunal; and
if you say so, you must produce written evidence that that was the
decision. The Tribunal’s recollection is not that five witnesses were
allowed.

DR. STAHMER: Yes, yes, yes. I shall submit written evidence of these
decisions to the Tribunal. I cannot remember offhand when they were
made, but originally five witnesses were granted; then I named another
witness, who was also granted, and it was only afterwards that the
decision to allow only three witnesses to give evidence in Court was
announced.

THE PRESIDENT: Dr. Stahmer, when the order was made limiting it to three
out of five, there was no reference in that order to affidavits, as far
as I know.

DR. STAHMER: No, affidavits were not mentioned then.

THE PRESIDENT: What I am telling you is that the Tribunal in making that
order of limitation intended to limit the whole of the evidence to three
witnesses on either side, because the matter is only a subsidiary
allegation of fact; and the Tribunal thinks that at this stage of the
proceedings such an allegation of fact ought not to be investigated by a
great number of witnesses, and three witnesses are quite sufficient on
either side.

Therefore the Tribunal does not desire to hear and did not intend that
it should have to hear any evidence except the evidence of three
witnesses, either orally or by affidavit.

The Tribunal will now adjourn.

     [_The Tribunal adjourned until Monday 1 July at 1000 hours._]




                    ONE HUNDRED AND SIXTY-EIGHTH DAY
                           Monday, 1 July 1946


                           _Morning Session_

THE PRESIDENT: I have an announcement to make.

The Tribunal orders that any of the evidence taken on commission which
the Defense Counsel or the Prosecution wish to use shall be offered in
evidence by them. This evidence will then become a part of the record,
subject to any objections.

Counsel for the organizations should begin to make up their document
books as soon as possible and put in their requests for translations.

That is all.

Dr. Stahmer.

DR. STAHMER: With reference to the events at Katyn, the Indictment
contains only the remark: “In September 1941, 11,000 Polish officers,
prisoners of war, were killed in the Katyn woods near Smolensk.” The
Russian Prosecution only submitted the details at the session of 14
February 1946. Document USSR-54 was then submitted to the Tribunal. This
document is an official report by the Extraordinary State Commission,
which was officially authorized to investigate the Katyn case. This
commission, after questioning the witnesses...

THE PRESIDENT: Dr. Stahmer, the Tribunal are aware of the document and
they only want you to call your evidence; that is all.

DR. STAHMER: I wanted only to add, Mr. President, that according to this
document, there are two accusations: One, that the period of the
shooting of the Polish prisoners of war was the autumn of 1941; and the
second assertion is, that the killing was carried out by some German
military authority, camouflaged under the name of “Staff of Engineer
Battalion 537.”

THE PRESIDENT: That is all in the document, is it not? I have just told
you we know the document. We only want you to call your evidence.

DR. STAHMER: Then, as my first witness for the Defense, I shall call
Colonel Friedrich Ahrens to the witness stand.

DR. SIEMERS: Mr. President, I have a request to make before the evidence
is heard in the Katyn case. The Tribunal decided that three witnesses
should be heard, and it hinted that in the interests of equality, the
Prosecution could also produce only three witnesses, either by means of
direct examination or by means of an affidavit. In the interests of that
same principled equality, I should be grateful if the Soviet Delegation,
in the same way as the Defense, would state the names of their witnesses
before the hearing of the evidence. The Defense submitted the names of
their witnesses weeks ago. Unfortunately, up to now, I note that in the
interests of equality and with regard to the treatment of the Defense
and the Prosecution, the Soviet Delegation has so far not given the
names of the witnesses.

THE PRESIDENT: General Rudenko, were you going to give me the names of
the witnesses?

GEN. RUDENKO: Yes, Mr. President. Today we notified the General
Secretary of the Tribunal that the Soviet Prosecution intends to call
three witnesses to the stand: Professor Prosorovski, who is the Chief of
the Medico-Legal Experts Commission; the Bulgarian subject, Professor of
Legal Medicine at Sofia University Markov, who at the same time was a
member of the so-called International Commission created by the Germans;
and Professor Bazilevsky, who was the deputy mayor of Smolensk during
the time of the German occupation.

[_The witness Ahrens took the stand._]

THE PRESIDENT: Will you state your full name?

FRIEDRICH AHRENS (Witness): Friedrich Ahrens.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. STAHMER: Witness, did you, as a professional officer in the German
Armed Forces, participate in the second World War?

AHRENS: Yes, of course; as a professional officer I participated in the
second World War.

DR. STAHMER: What rank did you hold finally?

AHRENS: At the end as colonel.

DR. STAHMER: Were you stationed in the eastern theater of war?

AHRENS: Yes.

DR. STAHMER: In what capacity?

AHRENS: I was the commanding officer of a signal regiment of an army
group.

DR. STAHMER: What were the tasks of your regiment?

AHRENS: The signal regiment of an army group had the task of setting up
and maintaining communications between the army group and the
neighboring units and subordinate units, as well as preparing the
necessary lines of communication for new operations.

DR. STAHMER: Did your regiment have any special tasks apart from that?

AHRENS: No, with the exception of the duty of defending themselves, of
taking all measures to hinder a sudden attack and of holding themselves
in readiness to defend themselves with the forces at their disposal, so
as to prevent the capture of the regimental battle headquarters.

This was particularly important for an army group signal regiment and
its battle headquarters because we had to keep a lot of highly secret
material in our staff.

DR. STAHMER: Your regiment was the Signal Regiment 537. Was there also
an Engineer Battalion 537, the same number?

AHRENS: During the time when I was in the Army Group Center I heard of
no unit with the same number, nor do I believe that there was such a
unit.

DR. STAHMER: And to whom were you subordinated?

AHRENS: I was directly subordinated to the staff of the Army Group
Center, and that was the case during the entire period when I was with
the army group. My superior was General Oberhäuser.

With regard to defense, the signal staff of the regiment with its first
battalion, which was in close touch with the regimental staff, was at
times subordinated to the commander of Smolensk; all orders which I
received from that last-named command came via General Oberhäuser, who
either approved or refused to allow the regiment to be employed for a
particular purpose.

In other words, I received my orders exclusively from General
Oberhäuser.

DR. STAHMER: Where was your staff accommodated?

AHRENS: I prepared a sketch of the position of the staff headquarters
west of Smolensk.

DR. STAHMER: I am having the sketch shown to you. Please tell us whether
that is your sketch.

AHRENS: That sketch was drawn by me from memory.

DR. STAHMER: I am now going to have a second sketch shown to you. Will
you please have a look at that one also, and will you tell me whether it
presents a correct picture of the situation?

AHRENS: May I briefly explain this sketch to you? At the right-hand
margin, that large red spot is the town of Smolensk. West of Smolensk,
and on either side of the road to Vitebsk, the staff of the army group
was situated together with the Air Force corps, that is south of
Krasnibor. On my sketch I have marked the actual area occupied by the
Army Group Center.

That part of my sketch which has a dark line around it was very densely
occupied by troops who came directly under the army group; there was
hardly a house empty in that area.

The regimental staff of my regiment was in the so-called little Katyn
wood. That is the white spot which is indicated on the sketch; it
measures about 1 square kilometer of the large forest and is a part of
the entire forest around Katyn. On the southern edge of this small wood
there lay the so-called Dnieper Castle, which was the regimental staff
headquarters.

Two and a half kilometers to the east of the staff headquarters of the
regiment there was the first company of the regiment, which was the
operating company, which did teleprinting and telephone work for the
army group. About 3 kilometers west of the regimental staff headquarters
there was the wireless company. There were no buildings within the
radius of about 1 kilometer of the regimental staff headquarters.

This house was a large two-story building with about 14 to 15 rooms,
several bath installations, a cinema, a rifle range, garages, Sauna
(steam baths) and so on, and was most suitable for accommodating the
regimental staff. Our regiment permanently retained this battle
headquarters.

DR. STAHMER: Were there also any other high-ranking staff headquarters
nearby?

AHRENS: As higher staff headquarters there was the army group, which I
have already mentioned, then a corps staff from the Air Force, and
several battalion staffs. Then there was the delegate of the railway for
the army group, who was at Gnesdovo in a special train.

DR. STAHMER: It has been stated in this Trial that certain events which
have taken place in your neighborhood had been most secret and most
suspicious. Will you please, therefore, answer the following questions
with particular care?

How many Germans were there in the staff personnel, and what positions
did they fill?

AHRENS: I had 3 officers on my staff to begin with, and then 2, and
approximately 18 to 20 noncommissioned officers and men; that is to say,
as few as I could have in my regimental staff, and every man in the
staff was fully occupied.

DR. STAHMER: Did you have Russian personnel in your staff?

AHRENS: Yes, we had four auxiliary volunteers and some female personnel
living in the immediate vicinity of the regimental staff quarters. The
auxiliary volunteers remained permanently with the regimental staff,
whereas the female personnel changed from time to time. Some of these
women also came from Smolensk and they lived in a separate building near
the regimental staff.

DR. STAHMER: Did this Russian personnel receive special instructions
from you about their conduct?

AHRENS: I issued general instructions on conduct for the regimental
headquarters, which did not solely apply to the Russian personnel.

I have already mentioned the importance of secrecy with reference to
this regimental headquarters, which not only kept the records of the
position of the army group, but also that of its neighboring units, and
on which the intentions of the army group were clearly recognizable.
Therefore, it was my duty to keep this material particularly secret.
Consequently, I had the rooms containing this material barred to
ordinary access. Only those persons were admitted—generally
officers—who had been passed by me, but also a few noncommissioned
officers and other ranks who were put under special oath.

DR. STAHMER: To which rooms did this “no admission” order refer?

AHRENS: In the first place, it referred to the telephone expert’s room,
it also referred to my own room and partly, although to a smaller
degree, to the adjutant’s room. All remaining rooms in the house and on
the site were not off limits.

THE PRESIDENT: Dr. Stahmer, how is this evidence about the actual
conditions in these staff headquarters relevant to this question?

DR. STAHMER: Mr. President, in the Russian document the allegation is
contained that events of a particularly secret nature had taken place in
this staff building and that a ban of silence had been imposed on the
Russian personnel by Colonel Ahrens, that the rooms had been locked, and
that one was only permitted to enter the rooms when accompanied by
guards. I have put the questions in this connection in order to clear up
the case and to prove that these events have a perfectly natural
explanation on account of the tasks entrusted to the regiment and which
necessitated quite obviously, a certain amount of secrecy.

For that reason, I have put these questions. May I be permitted...

THE PRESIDENT: Very well.

DR. STAHMER: I have almost finished with these questions.

[_Turning to the witness._] Was the Katyn wood cordoned off, and
especially strictly guarded by soldiers?

Mr. President, may I remark with reference to this question that here
also it had been alleged that this cordon had only been introduced by
the regiment. Previously, there had been free access to the woods, and
from this conclusions are drawn which are detrimental to the regiment.

AHRENS: In order to secure antiaircraft cover for the regimental staff
headquarters, I stopped any timber from being cut for fuel in the
immediate vicinity of the regimental staff headquarters. During this
winter the situation was such that the units cut wood wherever they
could get it.

On 22 January, there was a fairly heavy air attack on my position during
which half a house was torn away. It was quite impossible to find any
other accommodation because of the overcrowding of the area, and I
therefore took additional precautions to make sure that this already
fairly thin wood would be preserved so as to serve as cover. Since, on
the other hand, I am against the putting up of prohibition signs, I
asked the other troop units by way of verses to leave us our trees as
antiaircraft cover. The wood was not closed off at all, particularly as
the road had to be kept open for heavy traffic, and I only sent sentries
now and then into the wood to see whether our trees were left intact.

DR. STAHMER: The Prosecution...

THE PRESIDENT: Dr. Stahmer, at a time that is convenient to you, you
will, of course, draw our attention to the necessary dates, the date at
which this unit took over its headquarters and the date at which it
left.

DR. STAHMER: Very well.

[_Turning to the witness._] When did your unit, your regiment, move into
this Dnieper Castle?

AHRENS: As far as I know, this house was taken over immediately after
the combat troops had left that area in August 1941, and it was
confiscated together with the other army group accommodations, and was
occupied by advance parties. It was then permanently occupied by the
regimental headquarters as long as I was there up to August 1943.

DR. STAHMER: So, if I understand you correctly, it was first of all in
August 1941 that an advance party took it over?

AHRENS: Yes, as far as I know.

DR. STAHMER: When did the staff actually arrive?

AHRENS: A few weeks later.

DR. STAHMER: Who was the regimental commander at that time?

AHRENS: My predecessor was Colonel Bedenck.

DR. STAHMER: When did you take over the regiment?

AHRENS: I joined the army group during the second half of November 1941,
and after getting thoroughly acquainted with all details I took over the
command of the regiment, at the end of November, if I remember rightly,
on 30 November.

DR. STAHMER: Was there a proper handing over from Bedenck to you?

AHRENS: A very careful, detailed, and lengthy transfer took place, on
account of the very considerable tasks entrusted to this regiment. Added
to that, my superior, General Oberhäuser, was an extraordinarily
painstaking superior, and he took great pains to convince himself
personally whether, by the transfer negotiations and the instructions
which I had received, I was fully capable of taking over the
responsibilities of the regiment.

DR. STAHMER: The Prosecution further alleges and claims that it was
suspicious that shots were often fired in the forest. Is that true, and
to what would you attribute that?

AHRENS: I have already mentioned that it was one of the main tasks of
the regiment to take all the necessary measures to defend themselves
against sudden attack. Considering the small number of men which I had
in my regimental staff, I had to organize and take the necessary steps
to enable me to obtain replacements in the shortest time possible. This
was arranged through wireless communication with the regimental
headquarters. I ordered that defensive maneuvers should be carried out
and that defense works should be prepared around the regimental
headquarters sector and that there should be maneuvers and exercises in
these works together with the members of the regimental headquarters. I
personally participated in these maneuvers at times and, of course,
shots were fired, particularly since we were preparing ourselves for
night fighting.

DR. STAHMER: There is supposed to have been a very lively and rather
suspicious traffic to and around your staff building. Will you please
tell us quite briefly what this traffic signified?

AHRENS: There was an extraordinary lively traffic around staff
headquarters which still increased in the spring of 1941 as I was having
the house rebuilt. I think I mentioned that it had been destroyed
through air attacks. But, of course, the traffic increased also through
the maneuvers which were held nearby. The battalions in the front area
operating at 300 and 400 kilometers distance had to, and could perform
their job only by maintaining personal contact with the regiment and its
staff headquarters.

DR. STAHMER: There is supposed to have been considerable truck traffic
which has been described as suspicious.

AHRENS: Besides our supplies, which were relatively small, the
Kommandos, as I have just mentioned, were brought in by trucks; but so
was, of course, all the building material which I required. Apart from
that, the traffic was not unusually heavy.

DR. STAHMER: Do you know that about 25 kilometers west of Smolensk there
were three Russian prisoner-of-war camps, which had originally been
inhabited by Poles and which had been abandoned by the Russians when the
German troops approached in July 1941?

AHRENS: At that time I had not yet arrived. But never during the entire
period I served in Russia did I see a single Pole; nor did I hear of
Poles.

DR. STAHMER: It has been alleged that an order had been issued from
Berlin according to which Polish prisoners of war were to be shot. Did
you know of such an order?

AHRENS: No. I have never heard of such an order.

DR. STAHMER: Did you possibly receive such an order from any other
office?

AHRENS: I told you already that I never heard of such an order and I
therefore did not receive it, either.

DR. STAHMER: Were any Poles shot on your instructions, your direct
instructions?

AHRENS: No Poles were shot on my instructions. Nobody at all was ever
shot upon my order. I have never given such an order in all my life.

DR. STAHMER: Well, you did not arrive until November 1941. Have you
heard anything about your predecessor, Colonel Bedenck, having given any
similar orders?

AHRENS: I have not heard anything about it. With my regimental staff,
with whom I lived closely together for 21 months, I had such close
connections, I knew my people so well, and they also knew me, that I am
perfectly convinced that this deed was not perpetrated by my predecessor
nor by any member of my former regiment. I would undoubtedly have heard
rumors of it at the very least.

THE PRESIDENT: This is argument, you know, Dr. Stahmer. This is not
evidence; it is argument. He is telling you what he thinks might have
been the case.

DR. STAHMER: I asked whether he had heard of it from members of his
regiment.

THE PRESIDENT: The answer to that would be “no,” I suppose, that he had
not heard—not that he was convinced that he had not done it.

DR. STAHMER: Very well.

[_Turning to the witness._] After your arrival at Katyn, did you notice
that there was a grave mound in the woods at Katyn?

AHRENS: Shortly after I arrived—the ground was covered by snow—one of
my soldiers pointed out to me that at a certain spot there was some sort
of a mound, which one could hardly describe as such, on which there was
a birch cross. I have seen that birch cross. In the course of 1942 my
soldiers kept telling me that here in our woods shootings were supposed
to have taken place, but at first I did not pay any attention to it.
However, in the summer of 1942 this topic was referred to in an order of
the army group later commanded by General Von Harsdorff. He told me that
he had also heard about it.

DR. STAHMER: Did these stories prove true later on?

AHRENS: Yes, they did turn out to be true and I was able to confirm,
quite by accident, that there was actually a grave here. During the
winter of 1943—I think either January or February—quite accidentally I
saw a wolf in this wood and at first I did not believe that it was a
wolf; when I followed the tracks with an expert, we saw that there were
traces of scratchings on the mound with the cross. I had investigations
made as to what kind of bones these were. The doctors told me “human
bones.” Thereupon I informed the officer responsible for war graves in
the area of this fact, because I believed that it was a soldier’s grave,
as there were a number of such graves in our immediate vicinity.

DR. STAHMER: Then, how did the exhumation take place?

AHRENS: I do not know about all the details. Professor Dr. Butz arrived
one day on orders from the army group, and informed me that following
the rumors in my little wood, he had to make exhumations, and that he
had to inform me that these exhumations would take place in my wood.

DR. STAHMER: Did Professor Butz later give you details of the result of
his exhumations?

AHRENS: Yes, he did occasionally give me details and I remember that he
told me that he had conclusive evidence regarding the date of the
shootings. Among other things, he showed me letters, of which I cannot
remember much now; but I do remember some sort of a diary which he
passed over to me in which there were dates followed by some notes which
I could not read because they were written in Polish. In this connection
he explained to me that these notes had been made by a Polish officer
regarding events of the past months, and that at the end—the diary
ended with the spring of 1940—the fear was expressed in these notes
that something horrible was going to happen. I am giving only a broad
outline of the meaning.

DR. STAHMER: Did he give you any further indication regarding the period
he assumed the shooting had taken place?

AHRENS: Professor Butz, on the basis of the proofs which he had found,
was convinced that the shootings had taken place in the spring of 1940
and I often heard him express these convictions in my presence, and also
later on, when commissions visited the grave and I had to place my house
at the disposal of these commissions to accommodate them. I personally
did not have anything to do whatsoever with the exhumations or with the
commissions. All I had to do was to place the house at their disposal
and act as host.

DR. STAHMER: It was alleged that in March 1943 lorries had transported
bodies to Katyn from outside and these bodies were buried in the little
wood. Do you know anything about that?

AHRENS: No, I know nothing about that.

DR. STAHMER: Would you have had to take notice of it?

AHRENS: I would have had to take notice of it—at least my officers
would have reported it to me, because my officers were constantly at the
regimental battle headquarters, whereas I, as a regimental commander,
was of course, frequently on the way. The officer who in those days was
there constantly was First Lieutenant Hodt, whose address I got to know
last night from a letter.

DR. STAHMER: Were Russian prisoners of war used for these exhumations?

AHRENS: As far as I remember, yes.

DR. STAHMER: Can you tell us the number?

AHRENS: I cannot say exactly as I did not concern myself any further
with these exhumations on account of the dreadful and revolting stench
around our house, but I should estimate the number as being about 40 to
50 men.

DR. STAHMER: It has been alleged that they were shot afterward; have you
any knowledge of that?

AHRENS: I have no knowledge of that and I also never heard of it.

DR. STAHMER: I have no further questions, Mr. President.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for Defendant Dönitz): Colonel,
did you yourself ever discuss the events of 1940 with any of the local
inhabitants?

AHRENS: Yes. At the beginning of 1943 a Russian married couple were
living near my regimental headquarters; they lived 800 meters away and
they were beekeepers. I, too, kept bees, and I came into close contact
with this married couple. When the exhumations had been completed,
approximately in May 1943, I told them that, after all, they ought to
know when these shootings had taken place, since they were living in
close proximity to the graves. Thereupon, these people told me it had
occurred in the spring of 1940, and that at the Gnesdovo station more
than 200 Poles in uniform had arrived in railway trucks of 50 tons each
and were then taken to the woods in lorries. They had heard lots of
shots and screams, too.

FLOTTENRICHTER KRANZBÜHLER: Was the wood off limits to the local
inhabitants at the time?

AHRENS: We have...

THE PRESIDENT: That is a leading question. I do not think you should ask
leading questions.

FLOTTENRICHTER KRANZBÜHLER: Do you know whether the local inhabitants
could enter the woods at the time?

AHRENS: There was a fence around the wood and according to the
statements of the local inhabitants, civilians could not enter it during
the time the Russians were there. The remains of the fence were still
visible when I was there, and this fence is indicated on my sketch and
is marked with a black line.

FLOTTENRICHTER KRANZBÜHLER: When you moved into Dnieper Castle did you
make inquiries as to who the former owners were?

AHRENS: Yes, I did make inquiries because I was interested. The house
was built in a rather peculiar way. It had a cinema installation and its
own rifle range and of course that interested me; but I failed to
ascertain anything definite during the whole time I was there.

FLOTTENRICHTER KRANZBÜHLER: Apart from mass graves in the neighborhood
of the castle, were there any other graves found?

AHRENS: I have indicated by a few dots on my sketch, that in the
vicinity of the castle there were found a number of other small graves
which contained decayed bodies; that is to say, skeletons which had
disintegrated. These graves contained perhaps six, eight, or a few more
male and female skeletons. Even I, a layman, could recognize that very
clearly, because most of them had rubber shoes on which were in good
condition, and there were also remains of handbags.

FLOTTENRICHTER KRANZBÜHLER: How long had these skeletons been in the
ground?

AHRENS: That I cannot tell you. I know only that they were decayed and
had disintegrated. The bones were preserved, but the skeleton structure
was no longer intact.

FLOTTENRICHTER KRANZBÜHLER: Thank you, that is all.

DR. HANS LATERNSER (Counsel for General Staff and High Command of the
German Armed Forces): Mr. President...

THE PRESIDENT: Dr. Laternser, you know the Tribunal’s ruling.

DR. LATERNSER: Yes, Sir.

THE PRESIDENT: Well, you have no right to ask any questions of the
witness here.

DR. LATERNSER: Mr. President, I just wanted to ask you, in this unusual
case, to allow me to put questions...

THE PRESIDENT: I said to you that you know the Tribunal’s ruling and the
Tribunal will not hear you. We have already ruled upon this once or
twice in consequence of your objections and the Tribunal will not hear
you.

DR. LATERNSER: Mr. President, the Katyn case is one of the most serious
accusations raised against the group.

THE PRESIDENT: The Tribunal is perfectly well aware of the nature of the
allegations about Katyn and the Tribunal does not propose to make any
exceptional rule in that case and it therefore will not hear you and you
will kindly sit down.

DR. LATERNSER: Mr. President, I wish to state that on account of this
ruling I feel myself unduly handicapped in my defense.

THE PRESIDENT: As Dr. Laternser knows perfectly well, he is entitled to
apply to the Commission to call any witness who is called here, if his
evidence bears upon the case of the particular organizations for which
Dr. Laternser appears. I do not want to hear anything further.

DR. LATERNSER: Mr. President, the channel you point out to me is of no
practical importance. I cannot have every witness who appears here
called by the Commission.

THE PRESIDENT: Dr. Siemers, you are appearing for the Defendant Dönitz,
or is it Raeder?

DR. SIEMERS: Defendant Raeder.

THE PRESIDENT: Well, unless the questions you are going to ask
particularly refer to the case of the Defendant Raeder, the Tribunal is
not prepared to hear any further examination. The matter has been
generally covered by Dr. Stahmer and also by Dr. Kranzbühler. Therefore,
unless the questions which you want to ask have some particular
reference to the case of Raeder, the Tribunal will not hear you.

DR. SIEMERS: Mr. President, I had merely assumed that there were two
reasons on the strength of which I could put a few questions: First,
because the Tribunal itself has stated that within the framework of the
conspiracy all defendants had been participants; and second, that
according to the statements by the Prosecution Grossadmiral Raeder, too,
is considered a member of the alleged criminal organizations, the
General Staff and the OKW. It was for that reason I wanted to ask one or
two supplementary questions.

THE PRESIDENT: Dr. Siemers, if there were any allegations that in any
way bore on the case against Defendant Raeder, the Tribunal would of
course allow you to ask questions; but there is no allegation which in
any way connects the Defendant Raeder with the allegations about the
Katyn woods.

DR. SIEMERS: I am grateful to the Tribunal for that statement, Mr.
President.

DR. LATERNSER: Mr. President, may I be allowed to ask something else?
May I have the question put to the Prosecution, who is to be made
responsible for the Katyn case?

THE PRESIDENT: I do not propose to answer questions of that sort.

The Prosecution may now cross-examine if they want to.

CHIEF COUNSELLOR OF JUSTICE L. N. SMIRNOV (Assistant Prosecutor for the
U.S.S.R.): Please tell me, Witness, since when, exactly, have you been
in the Smolensk district territory?

AHRENS: I have already answered that question: since the second half of
November 1941.

MR. COUNSELLOR SMIRNOV: Please answer me further, where were you prior
to the second part of 1941? Did you in any way have anything to do with
Katyn or Smolensk or this district in general? Were you there personally
in September and October 1941?

AHRENS: No, I was not there.

MR. COUNSELLOR SMIRNOV: That is to say that you were not there, either
in September or in October 1941, and therefore do not know what happened
at that time in the Katyn forest?

AHRENS: I was not there at that time, but I mentioned earlier on that...

MR. COUNSELLOR SMIRNOV: No, I am actually only interested in a short
question. Were you there personally or not? Were you able to see for
yourself what was happening there or not?

THE PRESIDENT: He says he was not there.

AHRENS: No, I was not there.

THE PRESIDENT: He said he was not there in September or October 1941.

MR. COUNSELLOR SMIRNOV: Thank you, Mr. President.

[_Turning to the witness._] Maybe you recall the family names of the
Russian women workers who were employed at the country house in the
woods?

AHRENS: Those female workers were not working in different houses. They
merely worked as auxiliary kitchen personnel in our Dnieper Castle. I
have not known their names at all.

MR. COUNSELLOR SMIRNOV: That means that the Russian women workers were
employed only in the villa situated in Katyn forest where the staff
headquarters were located?

AHRENS: I believe that question was not translated well. I did not
understand it.

MR. COUNSELLOR SMIRNOV: I asked you whether the Russian women workers
were employed exclusively in the villa in Kosig Gory where the staff
headquarters were located? Is that right?

AHRENS: The women workers worked for the regimental headquarters as
kitchen help, and as kitchen helpers they worked on our premises; and by
our premises I mean this particular house with the adjoining houses—for
instance, the stables, the garage, the cellars, the boiler room.

MR. COUNSELLOR SMIRNOV: I will mention a few names of German military
employees. Will you please tell me whether they belonged to your unit?
First Lieutenant Rex?

AHRENS: First Lieutenant Rex was my regimental adjutant.

MR. COUNSELLOR SMIRNOV: Please tell me, was he already assigned to that
unit before your arrival at Katyn?

AHRENS: Yes, he was there before I came.

MR. COUNSELLOR SMIRNOV: He was your adjutant, was he not?

AHRENS: Yes, he was my adjutant.

MR. COUNSELLOR SMIRNOV: Lieutenant Hodt? Hodt or Hoth?

AHRENS: Lieutenant Hodt is right; but what question are you putting
about Lieutenant Hodt?

MR. COUNSELLOR SMIRNOV: I am only questioning you about whether he
belonged to your unit or not.

AHRENS: Lieutenant Hodt was a member of the regiment. Whether...

MR. COUNSELLOR SMIRNOV: Yes, that is what I was asking. He belonged to
the regiment which you commanded, to your army unit?

AHRENS: I did not say by that that he was a member of the regimental
staff, but that he belonged to the regiment. The regiment consisted of
three units.

MR. COUNSELLOR SMIRNOV: But he lived in the same villa, did he not?

AHRENS: That I do not know. When I arrived he was not there. I ordered
him to report to me there for the first time.

MR. COUNSELLOR SMIRNOV: I will enumerate a few other names. Corporal
Rose, Private Giesecken, Oberfeldwebel Krimmenski, Feldwebel Lummert, a
cook named Gustav. Were these members of the Armed Forces who were
billeted in the villa?

AHRENS: May I ask you to mention the names individually once again, and
I will answer you individually.

MR. COUNSELLOR SMIRNOV: Feldwebel Lummert?

AHRENS: Yes.

MR. COUNSELLOR SMIRNOV: Corporal Rose?

AHRENS: Yes.

MR. COUNSELLOR SMIRNOV: And I believe, if my memory serves me correctly,
Storekeeper Giesecke.

AHRENS: That man’s name was Giesecken.

MR. COUNSELLOR SMIRNOV: Yes, that is right. I did not pronounce this
name quite correctly. These were all your people or at least they
belonged to your unit, did they not?

AHRENS: Yes.

MR. COUNSELLOR SMIRNOV: And you assert that you did not know what these
people were doing in September and October 1941?

AHRENS: As I was not there, I cannot tell you for certain.

THE PRESIDENT: We will adjourn now.

                        [_A recess was taken._]

MR. COUNSELLOR SMIRNOV: May I continue? Mr. President, since the witness
has stated that he cannot give any testimony concerning the period of
September to October 1941, I will limit myself to very short questions.

[_Turning to the witness._] Witness, would you please point out the
location of the villa and the forest with respect to the
Smolensk-Vitebsk highway? Did the estate cover a large area?

AHRENS: My sketch is on a scale of 1 to 100,000 and is drawn from
memory. I estimate, therefore, that the graves were situated 200 to 300
meters directly west of the road to our Dnieper Castle, and 200 to 300
meters south of the Smolensk-Vitebsk road so that the Dnieper Castle lay
a further 600 meters away.

THE PRESIDENT: Will you repeat that?

AHRENS: South of the Smolensk-Vitebsk highway, approximately 15
kilometers west of Smolensk. According to the scale 1 to 100,000, as far
as one is able to draw such a sketch accurately from memory, the site of
these graves was 200 to 300 meters to the south, and a further 600
meters to the south, directly on the northern bend of the Dnieper, was
situated our regimental staff quarters, the Dnieper Castle.

MR. COUNSELLOR SMIRNOV: Consequently, the villa was approximately 600
meters away from the Smolensk-Vitebsk highway?

AHRENS: No, that is not correct. What I said...

MR. COUNSELLOR SMIRNOV: Please give a more or less exact figure. What
was the distance between the highway and the villa, please?

AHRENS: I just mentioned it in my testimony, that is to say, the graves
were about 200 to 300 meters away, and there were a further 600 meters
to the castle, therefore, in all about 900 to 1,000 meters. It might
have been 800 meters, but that is the approximate distance as can also
be seen by this sketch.

THE PRESIDENT: I am not following this. Your question, Colonel Smirnov,
was: How far was it from the road to what you called the country house?
Was it not?

MR. COUNSELLOR SMIRNOV: No, Mr. President, I asked how far was the villa
from the Smolensk-Vitebsk highway.

THE PRESIDENT: What do you mean by the “Villa”?

MR. COUNSELLOR SMIRNOV: The headquarters of the unit commanded by the
witness in 1941 was quartered in a villa, and this villa was situated
not far from the Dnieper River, at a distance of about 900 meters from
the highroad. The graves were nearer to the highway. I would like to
know how far away were the headquarters from the highway, and how far
away from the highway were the graves in Katyn forest.

THE PRESIDENT: What you want to know is: How far was the house in which
the headquarters was situated from the highway? Is that right?

MR. COUNSELLOR SMIRNOV: Yes, that is exactly what I wanted to know, Mr.
President.

AHRENS: You put two questions to me: first of all, how far were the
graves from the highway; and secondly, how far was the house from the
highway. I will repeat the answer once more, the house was 800 to 1,000
meters south of the Smolensk-Vitebsk highway.

MR. COUNSELLOR SMIRNOV: One minute, please. I asked you primarily only
about the house. Your answer concerning the graves was given on your own
initiative. Now I will ask you about the graves, how far were these mass
graves from the Smolensk-Vitebsk highway?

AHRENS: From 200 to 300 meters. It might also have been 350 meters.

MR. COUNSELLOR SMIRNOV: Consequently, the graves were 200 or 300 meters
from the main road which connected two important centers? Is that right?

AHRENS: Yes, indeed. They were at a distance of 200 to 300 meters south
of this, and I may say that at my time this was the most frequented road
I ever saw in Russia.

MR. COUNSELLOR SMIRNOV: That was just what I was asking you. Now, please
tell me: Was the Katyn wood a real forest, or was it, rather, a park or
a grove?

AHRENS: Up to now I have only spoken about the wood of Katyn. This wood
of Katyn is the fenced-in wooded area of about 1 square kilometer, which
I drew in my sketch. This wood is of mixed growth, of older and younger
trees. There were many birch trees in this little wood. However, there
were clearings in this wood, and I should say that from 30 to 40 percent
was cleared. One could see this from the stumps of newly felled trees.

Under no circumstances could you describe this wood as a park; at any
rate one could not come to such a conclusion. Fighting had taken place
in this wood, as one could still see trenches and fox holes.

MR. COUNSELLOR SMIRNOV: Yes, but anyway, you would not call Katyn wood a
real forest since it was relatively a small grove in the immediate
vicinity of the Smolensk-Vitebsk highway. Is that right?

AHRENS: No, that is not right. It was a forest. The entire Katyn forest
was a regular forest which began near our grove and extended far beyond
that. Of this Katyn forest, which was a mixed forest, part of it had
been fenced in, and this part, extending over 1 square kilometer, was
what we called the little Katyn wood, but it did belong to this entire
wooded region south of the highway. The forest began with our little
wood and extended to the west.

MR. COUNSELLOR SMIRNOV: I am not interested in the general
characteristics of the wood. I would like you to answer the following
short question: Were the mass graves located in this grove?

AHRENS: The mass graves were situated directly west of our entrance
drive in a clearing in the wood, where there was a growth of young
trees.

MR. COUNSELLOR SMIRNOV: Yes, but this clearing, this growth of young
trees, was located inside this small grove, near the Smolensk-Vitebsk
highway, is that correct?

AHRENS: It was 200 to 300 meters south of the Smolensk-Vitebsk highway,
and directly west of the entrance drive leading from this road to the
Dnieper Castle. I have marked this spot on my sketch with a fairly large
white dot.

MR. COUNSELLOR SMIRNOV: One more question. As far as you know did the
Smolensk-Vitebsk highway exist before the German occupation of Smolensk,
or was it constructed only after the occupation?

AHRENS: When I arrived in Russia at the end of November 1941, everything
was covered with snow. Later I got the impression that this was an old
road, whereas the road Minsk-Moscow was newer. That was my impression.

MR. COUNSELLOR SMIRNOV: I understand. Now tell me, under what
circumstances, or rather, when did you first discover the cross in the
grove?

AHRENS: I cannot tell the exact date. My soldiers told me about it, and
on one occasion when I was going past there, about the beginning of
January 1942—it could also have been at the end of December 1941—I saw
this cross rising above the snow.

MR. COUNSELLOR SMIRNOV: This means you saw it already in 1941 or at the
latest the beginning of 1942?

AHRENS: That is what I have just testified.

MR. COUNSELLOR SMIRNOV: Yes, certainly. Now, please be more specific
concerning the date when a wolf brought you to this cross. Was it in
winter or summer and what year?

AHRENS: It was the beginning of 1943.

MR. COUNSELLOR SMIRNOV: In 1943? And around the cross you saw bones, did
you not?

AHRENS: No.

MR. COUNSELLOR SMIRNOV: No?

AHRENS: No, at first I did not see them. In order to find out whether I
had not been mistaken about seeing a wolf, for it seemed rather
impossible that a wolf should be so near to Smolensk, I examined the
tracks together with a gamekeeper and found traces of scratching on the
ground. However, the ground was frozen hard, there was snow on the
ground and I did not see anything further there. Only later on, after it
had been thawing my men found various bones. However, this was months
later and then, at a suitable opportunity I showed these bones to a
doctor and he said that these were human bones. Thereupon I said, “Then
most likely it is a grave, left as a result of the fighting which has
taken place here,” and that the war graves registration officer would
have to take care of the graves in the same way in which we were taking
care of other graves of fallen soldiers. That was the reason why I spoke
to this gentleman—but only after the snow had melted.

MR. COUNSELLOR SMIRNOV: By the way, did you personally see the Katyn
graves?

AHRENS: Open or before they were opened?

MR. COUNSELLOR SMIRNOV: Open, yes.

AHRENS: When they were open I had constantly to drive past these graves,
as generally they were approximately 30 meters away from the entrance
drive. Therefore, I could hardly go past without taking any notice of
them.

MR. COUNSELLOR SMIRNOV: I am interested in the following: Do you
remember what the depth of the layer of earth was, which covered the
mass of human bodies in these graves?

AHRENS: That I do not know. I have already said that I was so nauseated
by the stench which we had to put up with for several weeks, that when I
drove past I closed the windows of my car and rushed through as fast as
I could.

MR. COUNSELLOR SMIRNOV: However, even if you only casually glanced at
those graves, perhaps you noticed whether the layer of earth covering
the corpses was deep or shallow? Was it several centimeters or several
meters deep? Maybe Professor Butz told you something about it?

AHRENS: As commander of a signal regiment I was concerned with a region
which was almost half as large as Greater Germany and I was on the road
a great deal. My work was not entirely carried out at the regimental
battle headquarters. Therefore, in general, from Monday or Tuesday until
Saturday I was with my units. For that reason, when I drove through, I
did cast an occasional glance at these graves; but I was not especially
interested in the details and I did not speak to Professor Butz about
such details. For this reason I have only a faint recollection of this
matter.

MR. COUNSELLOR SMIRNOV: According to the material submitted to the High
Tribunal by the Soviet Prosecution, it has been established that the
bodies were buried at a depth of 1½ to 2 meters. I wonder where you met
a wolf who could scratch the ground up to a depth of 2 meters.

AHRENS: I did not meet this wolf, but I saw it.

MR. COUNSELLOR SMIRNOV: Tell me please, why you started the exhumation
on these mass graves in March 1943 only, after having discovered the
cross and learned about the mass graves already in 1941?

AHRENS: That was not my concern, but a matter for the army group. I have
already told you that in the course of 1942 the stories became more
substantial. I frequently heard about them and spoke about it to Colonel
Von Gersdorff, Chief of Intelligence, Army Group Center, who intimated
to me that he knew all about this matter and with that my obligation
ended. I had reported what I had seen and heard. Apart from that, all
this matter did not concern me and I did not concern myself with it. I
had enough worries of my own.

MR. COUNSELLOR SMIRNOV: And now the last question. Please tell me who
were these two persons with whom you had this conversation, and maybe
you can recollect the names of the couple who told you about the
shootings in the Katyn woods?

AHRENS: This couple lived in a small house about 800 to 1,000 meters
north of the entrance to our drive leading to the Vitebsk road. I do not
recall their names.

MR. COUNSELLOR SMIRNOV: So you do not remember the names of this couple?

AHRENS: No, I do not recall the names.

MR. COUNSELLOR SMIRNOV: So you heard about the Katyn events from a
couple whose names you do not remember, and you did not hear anything
about it from other local inhabitants?

AHRENS: Please repeat the question for me.

MR. COUNSELLOR SMIRNOV: Consequently, you heard about these Katyn events
only from this couple, whose names you do not remember? From none of the
other local inhabitants did you hear anything about the events in Katyn?

AHRENS: I personally heard the facts only from this couple, whereas my
soldiers told me the stories current among the other inhabitants.

MR. COUNSELLOR SMIRNOV: Do you know that during the investigation of the
Katyn affair, or rather of the Katyn provocation, posters were placarded
by the German Police in the streets of Smolensk, promising a reward to
anyone giving any information in connection with the Katyn event? It was
signed by Lieutenant Voss.

AHRENS: I personally did not see that poster. Lieutenant Voss is known
to me by name only.

MR. COUNSELLOR SMIRNOV: And the very last question. Do you know of the
report of the Extraordinary State Commission concerning Katyn?

AHRENS: Do you mean the Russian _White Paper_ when you mention this
report?

MR. COUNSELLOR SMIRNOV: No, I mean the report of the Soviet
Extraordinary State Commission, concerning Katyn, the Soviet report.

AHRENS: Yes, I read that report.

MR. COUNSELLOR SMIRNOV: Therefore, you are acquainted with the fact that
the Extraordinary State Commission names you as being one of the persons
responsible for the crimes committed in Katyn?

AHRENS: It mentions a Lieutenant Colonel Arnes.

MR. COUNSELLOR SMIRNOV: I have no further questions, Mr. President.

THE PRESIDENT: Dr. Stahmer, do you wish to re-examine?

DR. STAHMER: Witness, just a little while ago you said that you did not
know when First Lieutenant Hodt joined your staff. Do you know when he
joined the regiment?

AHRENS: I know that he belonged to the regiment during the Russian
campaign and actually right from the beginning.

DR. STAHMER: That is, he belonged to the regiment from the beginning?

AHRENS: Yes. He belonged to this regiment ever since the beginning of
the Russian campaign.

DR. STAHMER: Just one more question dealing with your discussion with
Professor Butz. Did Professor Butz mention anything about the last dates
on the letters which he found?

AHRENS: He told me about the spring of 1940. He also showed me this
diary and I looked at it and I also saw the dates, but I do not recall
in detail just which date or dates they were. But they ended with the
spring of 1940.

DR. STAHMER: Therefore no documents were found of a later date?

AHRENS: Professor Butz told me that no documents or notes were found
which might have given indications of a later date, and he expressed his
conviction that these shootings must have taken place in the spring of
1940.

DR. STAHMER: Mr. President, I have no further questions to put to the
witness.

THE TRIBUNAL (Gen. Nikitchenko): Witness, can you not remember exactly
when Professor Butz discussed with you the date at which the corpses
were buried in the mass graves?

AHRENS: May I ask to have the question repeated?

THE TRIBUNAL (Gen. Nikitchenko): When did Professor Butz speak to you
about the mass graves and assert that the burial of the corpses must
have taken place in the spring of 1940?

AHRENS: I cannot tell you the date exactly, but it was in the spring of
1943, before these exhumations had started—I beg your pardon—he told
me that he had been instructed to undertake the exhumation and during
the exhumations he was with me from time to time; therefore it may have
been in May or the end of April. In the middle of May he gave me details
of his exhumations and told me among other things that which I have
testified here. I cannot now tell you exactly on which days Professor
Butz visited me.

THE TRIBUNAL (Gen. Nikitchenko): So far as I can remember, you stated
that Professor Butz arrived in Katyn. When did he actually arrive there?

AHRENS: In the spring of 1940 Professor Butz came to me and told me that
on instructions of the army group, he was to undertake exhumations in my
woods. The exhumations were started, and in the course of...

THE TRIBUNAL (Gen. Nikitchenko): You say 1940? Or perhaps the
translation is wrong?

AHRENS: 1943, in the spring of 1943. A few weeks after the beginning of
the exhumations, Professor Butz visited me, when I happened to be there,
and informed me; or, rather, he discussed this matter with me, and he
told me that to which I have testified here. It may have been the middle
of May 1943.

THE TRIBUNAL (Gen. Nikitchenko): According to your testimony, I
understood you to say in answer to a question put by the defense
counsel, that Professor Butz asserted that the shootings had taken place
in the spring of 1940 before the arrival of the commission for the
exhumations. Is that correct?

AHRENS: May I repeat once more that Professor Butz...

THE TRIBUNAL (Gen. Nikitchenko): It is not necessary to repeat what you
have already said. I am only asking you, is it correct or not? Maybe the
translation was incorrect, or maybe your testimony was incorrect at the
beginning.

AHRENS: I did not understand the question just put to me. That is the
reason why I wanted to explain this once more. I do not know just what
is meant by this last question. May I ask this question be repeated?

THE TRIBUNAL (Gen. Nikitchenko): At the beginning, when you were
interrogated by the defense counsel, I understood you to say that
Professor Butz told you that the shooting had taken place in the spring
of 1940, that is before the arrival of the commission for the
exhumations.

AHRENS: No, that has not been understood correctly. I testified that
Professor Butz came to me and told me that he was to make exhumations
since it concerned my woods. These exhumations then took place, and
approximately 6 to 8 weeks later Professor Butz came to me—of course,
he visited me on other occasions as well—but approximately 6 to 8 weeks
later he came to me and told me that he was convinced that, as a result
of his discoveries, he was now able to fix the date of the shootings.
This statement which he made to me, refers approximately to the middle
of May.

THE TRIBUNAL (Gen. Nikitchenko): Were you present when the diary and the
other documents which were shown to you by Professor Butz were found?

AHRENS: No.

THE TRIBUNAL (Gen. Nikitchenko): You do not know where he found the
diary and other documents?

AHRENS: No, that I do not know.

THE PRESIDENT: When did you first report to superior authority the fact
that you suspected that there was a grave there?

AHRENS: At first, I was not suspicious. I have already mentioned that
fighting had taken place there; and at first I did not attach any
importance to the stories told to me and did not give this matter any
credence. I believed that it was a question of soldiers who had been
killed there—of war graves, like several in the vicinity.

THE PRESIDENT: You are not answering my question. I am asking you, when
did you first report to superior authority that there was a grave there?

AHRENS: In the course of the summer 1942 I spoke to Colonel Von
Gersdorff about these stories which had come to my knowledge. Gersdorff
told me that he had heard that too, and that ended my conversation with
Von Gersdorff. He did not believe it to be true; in any case he was not
thoroughly convinced. That I do not know, however.

Then in the spring of 1943, when the snow had melted, the bones which
had been found there were brought to me, and I then telephoned to the
officer in charge of war graves and told him that apparently there were
some soldiers’ graves here. That was before Professor Butz had visited
me.

THE PRESIDENT: Did you make any report in writing?

AHRENS: No, I did not do that.

THE PRESIDENT: Never?

AHRENS: No, I was not in any way concerned with this matter.

THE PRESIDENT: The witness can retire.

DR. STAHMER: Then, as another witness, I should like to call Lieutenant
Reinhard von Eichborn.

THE PRESIDENT: Yes.

[_The witness Von Eichborn took the stand._]

Will you state your full name please.

REINHARD VON EICHBORN (Witness): Reinhard von Eichborn.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. STAHMER: Witness, what is your occupation?

VON EICHBORN: Assistant judge.

DR. STAHMER: Were you called up for service in the German Armed Forces
during this war?

VON EICHBORN: Yes, in August 1939.

DR. STAHMER: And what was your unit?

VON EICHBORN: Army Group Signal Regiment 537.

DR. STAHMER: And what was your rank?

VON EICHBORN: At the outbreak of the war, platoon leader and lieutenant.

DR. STAHMER: And at the end?

VON EICHBORN: First lieutenant.

DR. STAHMER: Were you on the Eastern Front during the war?

VON EICHBORN: Yes, from the beginning.

DR. STAHMER: With your regiment?

VON EICHBORN: No, from 1940 onward, on the staff of Army Group Center.

DR. STAHMER: Apart from this Regiment 537, was there an Engineer
Battalion 537?

VON EICHBORN: In the sphere of the Army Group Center there was no
Engineer Battalion 537.

DR. STAHMER: When did you arrive with your unit in the vicinity of
Katyn?

VON EICHBORN: About 20 September the staff of Army Group Center
transferred its headquarters to Smolensk, that is to say in the Smolensk
region.

DR. STAHMER: Where had you been stationed before?

VON EICHBORN: How am I to understand this question?

DR. STAHMER: Where did you come from?

VON EICHBORN: We came from Borisov.

THE PRESIDENT: One moment. The witness said 20 September. That does not
identify the year.

DR. STAHMER: In what year was this 20 September?

VON EICHBORN: 20 September 1941.

DR. STAHMER: Was Regiment 537 already there at that time?

VON EICHBORN: The staff of Regiment 537 was transferred at about the
same time together with the staff of the army group to the place where
the headquarters of the army group was. Advance units had already been
stationed there previously, in order to set up communication facilities.

DR. STAHMER: And where was this staff accommodated?

VON EICHBORN: The staff of Army Group Signal Regiment 537 was
accommodated in the so-called Dnieper Castle.

DR. STAHMER: Where was the advance unit?

VON EICHBORN: The advance unit may have occupied this building, too—or
at least a part of this advance unit did—to safeguard this building for
the regimental staff.

DR. STAHMER: Do you know who was in command of this advance unit?

VON EICHBORN: Lieutenant Hodt was in command of this advance unit.

DR. STAHMER: When did this advance unit come to Katyn?

VON EICHBORN: Smolensk fell on about 17 July 1941. The army group had
planned to put up its headquarters in the immediate vicinity of
Smolensk, and, after this group had selected its quarters, this region
was seized immediately after the fall of the city. The advance unit
arrived at the same time as this area was seized, and that was probably
in the second half of July of 1941.

DR. STAHMER: Therefore the advance unit was there from July of 1941
until 20 September 1941?

VON EICHBORN: Yes.

DR. STAHMER: And the entire staff was there from 20 September 1941?

VON EICHBORN: Yes. It may be that part of the staff arrived somewhat
later, but the majority of the staff arrived on 20 September.

THE PRESIDENT: Are you speaking of the staff of the army group or the
staff of the signal regiment?

VON EICHBORN: I am speaking of both staffs, because the moving of large
staffs such as that of an army group could not be undertaken in 1 day;
usually 2 to 3 days were needed for that. The operations of the signal
corps had to be assured, and therefore the regiment had to leave some of
the staff behind until the entire staff had been moved.

DR. STAHMER: Where was the advance unit accommodated?

VON EICHBORN: At least part of the advance unit was accommodated in the
Dnieper Castle. Some of the others were in the neighborhood of those
places where later on the companies were billeted. The reason for that
was to keep the billets ready for this regiment until the bulk of it had
been moved.

DR. STAHMER: How about the Regimental Staff 537?

VON EICHBORN: That was in the Dnieper Castle.

DR. STAHMER: Can you give us the names of the officers who belonged to
the regimental staff?

VON EICHBORN: At that time there was Lieutenant Colonel Bedenck, the
commanding officer; Lieutenant Rex, adjutant; Lieutenant Hodt, orderly
officer; and a Captain Schäfer, who was a telephone expert. It may be
that one or two others were there as well, but I can no longer remember
their names.

DR. STAHMER: The preceding witness has already told us about the tasks
of the regimental staff. How were the activities of the regimental staff
controlled?

VON EICHBORN: The regiment, which consisted of 10 to 12 companies, had
to give an exact report each evening as to what work had been allotted
to the various companies. This was necessary as we had to know what
forces were available in case of emergency, for undertaking any new
tasks.

DR. STAHMER: How far away from the Dnieper Castle were you billeted?

VON EICHBORN: Approximately 4 to 5 kilometers. I cannot give you the
exact distance as I always made it by car, but it would be about 4 to 5
kilometers.

DR. STAHMER: Did you frequently go to Dnieper Castle?

VON EICHBORN: Very frequently when I was off duty, as I had belonged to
this regiment and knew most of the officers, with whom I was on friendly
terms.

DR. STAHMER: Can you tell us about the kind and extent of the traffic to
the Dnieper Castle?

VON EICHBORN: In order to judge this you have to differentiate between
persons and things. So far as people were concerned, the traffic was
very lively because the regiment had to be very centrally organized in
order to be equal to its tasks. Therefore, many couriers came and
commanders of the various companies frequently came to visit the
regimental staff.

On the other hand there was a heavy traffic of trucks and passenger
cars, because the regiment tried to improve its billets there; and since
we remained there for some time all sorts of building alterations were
carried out in the house.

DR. STAHMER: Did you hear anything about there being three Russian camps
with captured Polish officers, 25 to 45 kilometers west of Smolensk,
which had allegedly fallen into German hands?

VON EICHBORN: I never heard anything about any kind of Polish officers’
camps or Polish prisoner-of-war camps.

DR. STAHMER: Did your army group receive reports about the capture of
such Polish officers?

VON EICHBORN: No. I would have noticed that, since the number of
prisoners, and especially the number of officers, was always submitted
to me in the evening reports of the armies which took these prisoners.
It was our responsibility to receive these signal reports and we
therefore saw them every evening.

DR. STAHMER: You did not receive a report to that effect?

VON EICHBORN: I neither saw such a report from an army, which would have
issued it, nor did I ever receive a report from an army group which
would have had to transmit this report in their evening bulletin to the
High Command of the Army (OKH).

DR. STAHMER: Could a report like that have been handed in from another
source or been sent to another office?

VON EICHBORN: The official channel in the Army was very stringent, and
the staffs saw to it that official channels were strictly adhered to. In
any case the armies were always required to make the detailed reports,
following the lines stipulated in the form sheets and this applied
especially to the figures concerning prisoners. Therefore, it is quite
out of the question that if such a number of officers had fallen into
the hands of an army, it would not have reported the matter through the
appropriate channel.

DR. STAHMER: You said, just a little while ago, that you were in
particularly close relationship with the officers of this regiment. Did
you ever hear that Polish prisoners of war, officers, were shot at some
time or other in the Katyn forest at the instigation of Regiment 537
under Colonel Bedenck or under Colonel Ahrens?

VON EICHBORN: I knew nearly all the officers of the regiment, as I
myself had been over a year with the regiment, and I was on such
familiar terms with most of the officers that they told me everything
that took place, even anything of an unofficial nature. Therefore, it is
quite out of the question that such an important matter should not have
come to my knowledge. From the nature of the whole character moulding in
the regiment, it is quite impossible that there should not have been at
least one who would have come to tell me about it immediately.

DR. STAHMER: Were all the operational orders for Regiment 537 officially
known to you?

VON EICHBORN: The operational orders for this army group signal regiment
were twofold: The orders which concerned only the wireless company and
those which applied to the nine telephone companies. Since I was a
telephone expert, it was quite natural for me to draft these orders and
submit them to my superior, General Oberhäuser. Therefore, each order
which was issued had either been drafted by me or I had seen it
beforehand.

DR. STAHMER: Was there ever at any time an order given out by your
office to shoot Polish prisoners of war?

VON EICHBORN: Such an order was neither given to the regiment by our
office nor by any other office. Neither did we receive a report to this
effect, nor did we hear about things like that through any other
channel.

DR. STAHMER: If an order like that came through official channels, it
could come only through you?

VON EICHBORN: This order would have necessitated a great many members of
the regiment being taken away from their own duties, which were to
safeguard the system of communications. As we were very short of
signallers, we had to know what almost every man in the regiment was
doing. It would have been quite out of the question for any member of
the regiment to have been taken away from such a duty without our
knowledge.

DR. STAHMER: I have no further questions, Mr. President.

THE PRESIDENT: Dr. Kranzbühler, whom are you appearing on behalf of?

FLOTTENRICHTER KRANZBÜHLER: For Grossadmiral Dönitz, Mr. President.

THE PRESIDENT: There is no charge made against Grossadmiral Dönitz in
connection with this offense at all.

FLOTTENRICHTER KRANZBÜHLER: Mr. President, the exhumations and the
propaganda connected with them occurred during the period when
Grossadmiral Dönitz was Commander-in-Chief of the Navy. The Prosecution
alleges that at that time Grossadmiral Dönitz was a member of the
Cabinet and had participated in all acts taken by the Government.
Therefore, I must consider him as being implicated in all the problems
arising out of the Katyn case.

THE PRESIDENT: That would mean that we should have to hear examination
from everybody who was connected with the Government. And the Tribunal
has already pointed out, with reference to Admiral Raeder, that his case
was not connected with this matter. It is only when a case is directly
connected with the matter that counsel for the individual defendants are
allowed to cross-examine, in addition to the defendant’s counsel who
calls the witness. If there is any suggestion that you want to make to
the counsel who is calling the witness, you can make it to him, but you
are not entitled...

FLOTTENRICHTER KRANZBÜHLER: But I am asking your permission to put two
or three questions to this witness.

THE PRESIDENT: If you have any special questions to put, you may suggest
them to Dr. Stahmer, and Dr. Stahmer will put them. Dr. Kranzbühler, if
you want to put any questions, you may put them to Dr. Stahmer, and he
will put them to the witness.

FLOTTENRICHTER KRANZBÜHLER: Mr. President, I did not quite understand.
Shall I propose to Dr. Stahmer to put the questions or...

THE PRESIDENT: If you cannot do it verbally, you may do it in writing,
and you may do it later on. But I really do not think there can be any
questions which are so difficult to suggest to Dr. Stahmer as all that.

FLOTTENRICHTER KRANZBÜHLER: They can also be put through Dr. Stahmer. I
was only thinking that I would save some time by putting the questions
myself.

THE PRESIDENT: I told you if you wish to ask any questions, you must ask
them through Dr. Stahmer.

FLOTTENRICHTER KRANZBÜHLER: Thank you, Mr. President.

THE PRESIDENT: In the meantime, the Tribunal will go on with the
cross-examination, and any questions which you wish to put can be put in
re-examination.

Does the Prosecution wish to cross-examine?

MR. COUNSELLOR SMIRNOV: Witness, I am interested to know your exact
function in the army. Were you in charge of teleprinter communications
at the headquarters of Army Group Center or were you a wireless expert?

VON EICHBORN: No, Mr. Prosecutor, you are wrong. I was the telephone
expert of Army Group Center, not the wireless expert.

MR. COUNSELLOR SMIRNOV: That is exactly what I am asking you. The
translation was evidently incorrect. So you were in charge of telephone
communications, were you not?

VON EICHBORN: Yes; you are right.

MR. COUNSELLOR SMIRNOV: Ordinary telegrams, or ciphered telegrams?

VON EICHBORN: The task of a telephone expert connected with an army
group consisted in keeping the telephone lines intact...

MR. COUNSELLOR SMIRNOV: No, I am not interested in the tasks in a
general way. I would like to know whether these were secret ciphered
telegrams or the ordinary army mail, army communications which were not
secret.

VON EICHBORN: There were two kinds of telegrams, open and secret.

MR. COUNSELLOR SMIRNOV: Were secret telegrams transmitted by you, too?

VON EICHBORN: Both came through me.

MR. COUNSELLOR SMIRNOV: Consequently, all communications between the
Wehrmacht, between Army units and the highest police authorities also
passed through you; is that correct?

VON EICHBORN: The most important telegrams, and especially the secret
ones were submitted to the telephone expert.

MR. COUNSELLOR SMIRNOV: Yes. Consequently, the correspondence between
the police authorities and the Armed Forces units passed through you; is
that correct? I am asking you this question for a second time.

VON EICHBORN: I must answer with the reservation that the messages did
not pass through the telephone expert, but only the most important
secret teletype matters were submitted to him—not the whole
correspondence, because that went also through the mail as well as by
courier service.

MR. COUNSELLOR SMIRNOV: That is clear. Do you know in this case that in
September and October 1941 there were special detachments in Smolensk
whose duty, in close co-operation with the Army, was to carry out the
so-called purge of the prisoner-of-war camps and the extermination of
prisoners of war?

DR. LATERNSER: Mr. President, I must decisively object to this
questioning of the witness. This questioning can have only the purpose
of determining the relations between the General Staff and the OKW and
any commands of the Security Service. Therefore, they are accusing the
General Staff and the OKW; and if I, Mr. President, as defense counsel
for the General Staff and the OKW am not permitted to put questions,
then on the basis of equal treatment, the same rules must apply to the
Prosecution as well.

MR. COUNSELLOR SMIRNOV: May I, Mr. President, make a short statement?

THE PRESIDENT: Colonel Smirnov, the question is competent.

MR. COUNSELLOR SMIRNOV: I beg your pardon.

THE PRESIDENT: I said the question was competent. You may ask the
question.

MR. COUNSELLOR SMIRNOV: I would like to ask you the following question,
Witness. Since all secret teletypes passed through you, did you ever
encounter among these telegrams any from the so-called 1st Einsatzgruppe
“B”—that was the so-called first command—or from the Special Command
“Moscow” which at that time was located at Smolensk and kept in reserve
in anticipation of better times? The latter had the order to perpetrate
mass murders in Moscow. Both commands were located at Smolensk at that
time.

VON EICHBORN: No such reports came into my hands. I can fully explain
this to you, Mr. Prosecutor. When any detachments of this sort had been
established in the area of Army Group Center, these detachments had
their own wireless stations. It was only later on in the course of the
Russian campaign that these posts had teletype facilities as well; then
they used the army group network. However, that only happened later.

MR. COUNSELLOR SMIRNOV: Consequently, the telegrams of those special
units which, by order of high police authorities, were assigned to carry
out special actions in co-operation with military units, did not pass
through your hands in September and October of 1941?

VON EICHBORN: That is correct. At that time, there were no teletype
facilities and offices for such special units, even if they were in that
area at all.

MR. COUNSELLOR SMIRNOV: Mr. President, this document was already
presented to the Court together with the Extraordinary State Commission
Report, Document Number USSR-3. If the High Tribunal will permit it, I
should like to present to the Tribunal and to the Defense photostatic
copies of one of the documents which was attached to the report of the
Extraordinary State Commission. If the Tribunal will look at Page 2 of
this document, it will see that the Special Command “Moscow” and the
Einsatzgruppe “B” were both located in Smolensk. It says on the first
page that these detachments together with units of the Armed Forces,
were assigned to carry out mass killings in the camps. If the Tribunal
will permit me, I shall submit this document now...

THE PRESIDENT: Colonel Smirnov, that is a matter of argument. We shall
take judicial notice of it, of course, of everything which is in the
Soviet Government’s publication. And I understand you to say that this
document is a part of the Soviet Government communication or Soviet
Government report.

MR. COUNSELLOR SMIRNOV: Yes, Mr. President; but I would like to ask
permission to present an original German document, a secret document,
which states that in the Smolensk area there were two large special
commands whose duties were to carry out mass murders in the camps, and
that these actions had to be carried out together with the Armed Forces
units which had to co-operate with them.

THE PRESIDENT: Colonel Smirnov, is this document which you have just
handed up to us a part of the report USSR-3?

MR. COUNSELLOR SMIRNOV: Yes, Mr. President, it is a part of the report,
Document USSR-3, called “Special Directives of the Hitler Government
Concerning the Annihilation of Prisoners of War.” I would like to ask
the Tribunal to allow me to present one of the original documents even
if the report, USSR-3, has been already submitted in full.

It says there that these special units were located in Smolensk and were
assigned together with the Armed Forces units to carry out mass killings
in the camps.

THE PRESIDENT: Yes, Colonel Smirnov. This document is already in
evidence, if the Tribunal understands correctly.

MR. COUNSELLOR SMIRNOV: Thank you, Mr. President.

[_Turning to the witness._] Consequently, we may consider it as an
established fact that the correspondence, the telegraphic messages of
these special detachments did not pass through your hands; is that
correct?

THE PRESIDENT: He has said that twice already.

MR. COUNSELLOR SMIRNOV: Excuse me, Mr. President.

[_Turning to the witness._] Why did you assert with such certainty that
there were no reports about the killing of the Poles? You know that the
killing of the Polish prisoners of war was a special action, and any
report about this action would have to pass through your hands? Is that
correct?

VON EICHBORN: I answered the prosecutor—rather, I answered Dr.
Stahmer—that if in the area of Army Group Signal Regiment 537 killings
of that sort had taken place, I would undoubtedly have known about them.
I did not state what the prosecutor is now trying to ascribe to me.

THE PRESIDENT: Colonel Smirnov, the Tribunal think you had better read
this passage from this document, which is in the German language, to the
Tribunal so that it will go into the record.

MR. COUNSELLOR SMIRNOV: In this document, Mr. President, it is stated...

THE PRESIDENT: Go on, Colonel Smirnov.

MR. COUNSELLOR SMIRNOV: Thank you, Mr. President.

This document is dated “Berlin, 29 October 1941.” It is headed, “The
Chief of the Security Police and of the Security Service.” It has a
classification, “Top Secret; Urgent letter; Operational Order
Number-14.” Reference is made to decrees of 17 July and 12 September
1941. I shall now read a few short sentences, and I shall begin with the
first sentence:

    “In the appendix, I am sending directions for the evacuation of
    Soviet civilian prisoners and prisoners of war out of permanent
    prisoner-of-war camps and transit camps in the rear of the
    Army...

    “These directives have been worked out in collaboration with the
    Army High Command. The Army High. Command has notified the
    commanders of the armies in the rear as well as the local
    commanders of the prisoner-of-war camps and of the transit
    camps.

    “The task force groups, depending on the size of the camp in
    their territory, are setting up special commands in sufficient
    strength under the leadership of an SS leader. The commands are
    instructed immediately to start work in the camps.”

I break off here, and will continue reading the last paragraph:

    “I emphasize especially that Operational Orders Number 8 and 14
    as well as the appendix are to be destroyed immediately in the
    case of immediate danger.”

I shall finish my reading and now I shall only mention the distribution
list. On Page 2 I quote the part concerning Smolensk. It says here that
in Smolensk the Einsatzgruppe “B” was located, consisting of Special
Commands 7a, 7b, 8, and 9; and in addition to this, there was already
located in Smolensk a special command, which had been rather prematurely
named “Moscow” by its organizers.

These are the contents of the document, Mr. President.

THE PRESIDENT: The Tribunal directs that the whole document shall be
translated. We will now recess until 5 minutes past 2 o’clock.

              [_The Tribunal recessed until 1405 hours._]




                          _Afternoon Session_

MR. COUNSELLOR SMIRNOV: Mr. President, I have no more questions to put
to this witness.

THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: Witness, do you know who owned that little castle near the
Dnieper before the occupation by German troops? Who owned it, who lived
there?

VON EICHBORN: I cannot say that for certain. We noticed that the little
castle was astonishingly well furnished. It was very well laid out. It
had two bathrooms, a rifle range, and a cinema. We drew certain
conclusions therefrom, when the facts became known, but I do not know
anything about the previous owner.

DR. STAHMER: The Russian Prosecutor submitted to you a document dated 29
October 1941, “Directives to the Chief of the Sipo for the Detachments
in the Stalags.” With reference to that document, I want to ask you
whether you had an opportunity personally to ascertain the attitude of
Field Marshal Kluge, your commander of Army Group Center, regarding the
shooting of prisoners of war?

VON EICHBORN: By chance I became the ear-witness of a conversation
between the Commanders Bock and Kluge. That conversation took place
about 3 or 4 weeks before the beginning of the Russian campaign. I
cannot tell you the exact time. At the time Field Marshal Von Bock was
the commander of Army Group Center, and Field Marshal Von Kluge was
commander of the 4th Army. The army group was in Posen and the 4th Army
at Warsaw. One day I was called by the aide-de-camp of Field Marshal Von
Beck, who was Lieutenant Colonel Count Hardenberg. He gave me the
order...

THE PRESIDENT: These details are entirely irrelevant, aren’t they. All
you want to ask him is: What was the attitude of Von Kluge? That is all.

DR. STAHMER: The answer did not come through. I did not understand what
you said, Mr. President.

THE PRESIDENT: What I said was that all these details about the
particular place where Von Kluge met some other army group commander are
utterly irrelevant. All you are trying to ask him is: What was Von
Kluge’s attitude toward the murder of war prisoners? Isn’t that all?

DR. STAHMER: Yes.

[_Turning to the witness._] Will you answer the question briefly,
Witness. Please just tell us what Von Kluge said.

VON EICHBORN: Von Kluge told Von Bock, during a telephone conversation,
that the order for the shooting of certain prisoners of war was an
impossibility and could not be carried out, with regard to the
discipline of the troops. Von Bock shared this point of view and both
these gentlemen talked for half an hour about the measures which they
wanted to adopt against this order.

DR. STAHMER: According to the allegations of the Prosecution, the
shooting of these 11,000 Polish officers is supposed to have been
carried out sometime in September 1941. The question now is: Do you
consider it possible, in view of local conditions, that such mass
shootings and burials could have been carried out next door to the
regimental headquarters without you yourself having heard about it?

VON EICHBORN: We were very busy in preparation for the move of the army
group to Smolensk. We had assigned a great number of signal troops for
setting up perfect installations. On the entire site there was a
constant going and coming of troops laying cables and telephone lines.
It is out of the question that anything of this kind could have occurred
in that particular area without the regiment and I getting knowledge of
it.

DR. STAHMER: I have no further questions to put to the witness, Mr.
President.

THE PRESIDENT: The witness can retire.

DR. STAHMER: Mr. President, before calling my third witness, Lieutenant
General Oberhäuser, may I ask your permission to make the following
remarks?

The Prosecution has up to now only alleged that Regiment Number 537 was
the one which had carried out these shootings and that under Colonel
Ahrens’ command. Today again, Colonel Ahrens has been named by the
Prosecution as being the perpetrator. Apparently this allegation has
been dropped and it has been said that if it was not Ahrens then it must
have been his predecessor, Colonel Bedenck; and if Colonel Bedenck did
not do it, then apparently—and this seems to be the third version—it
was done by the SD. The Defense had taken the position solely that
Colonel Ahrens was accused as the perpetrator and it has refuted that
allegation. Considering the changed situation and the attitude adopted
by the Prosecution, I shall have to name a fourth witness in addition.
That is First Lieutenant Hodt, who has been mentioned today as the
perpetrator and who was with the regimental staff right from the
beginning and who was, as we have told, the senior of the advance party
which arrived at the Dnieper Castle in July. I got the address of First
Lieutenant Hodt by chance yesterday. He is at Glücksburg near Flensburg;
and I, therefore, ask to be allowed to name as a witness First
Lieutenant Hodt, who will give evidence that during the time between
July and September such shootings did not occur.

THE PRESIDENT: Dr. Stahmer, the Tribunal will consider your application,
when they adjourn at half past 3, with reference to this extra witness.

DR. STAHMER: Yes, Sir. Then I shall now call Lieutenant General
Oberhäuser as witness.

[_The witness Oberhäuser took the stand._]

THE PRESIDENT: Will you state your full name, please?

EUGEN OBERHÄUSER (Witness): Eugen Oberhäuser.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. STAHMER: General, what position did you hold during the war?

OBERHÄUSER: I was the signal commander in an army group, first of all
during the Polish campaign, in Army Group North; then, in the Western
campaign Army Group B; and then in Russia, Army Group Center.

DR. STAHMER: When did you and your staff reach the neighborhood of
Katyn?

OBERHÄUSER: Sometime during September 1941.

DR. STAHMER: Where was your staff located?

OBERHÄUSER: My staff was located in the immediate vicinity of the
commander of the army group; that is to say, about 12 kilometers west of
Smolensk, near the railroad station of Krasnibor.

DR. STAHMER: Was Regiment Number 537 under your command?

OBERHÄUSER: Regiment 537 was directly under my command.

DR. STAHMER: What task did that regiment have?

OBERHÄUSER: That regiment had the task of establishing both telegraph
and wireless communications between the command of the army group and
the various armies and other units which were directly under its
command.

DR. STAHMER: Was the staff of the regiment stationed near you?

OBERHÄUSER: The staff of that regiment was located about 3, perhaps 4
kilometers west from my own position.

DR. STAHMER: Can you give us more detailed information regarding the
exact location of the staff headquarters of Number 537?

OBERHÄUSER: The staff headquarters of 537 was in a very nice Russian
timber house. Commissars were supposed to have been living there before.
It was on the steep bank of the Dnieper River. It was somewhat off the
road, perhaps 400 to 500 meters away. It was, from my place, 4
kilometers west of the main highway Smolensk to Vitebsk.

DR. STAHMER: Who was the commanding officer of the regiment after the
capture of Smolensk?

OBERHÄUSER: After the capture of Smolensk, Colonel Bedenck was the
commander of the regiment.

DR. STAHMER: For how long?

OBERHÄUSER: Until about November 1941.

DR. STAHMER: Who was his successor?

OBERHÄUSER: His successor was Colonel Ahrens.

DR. STAHMER: How long?

OBERHÄUSER: Approximately until September—it may have been
August—1943.

DR. STAHMER: Were you near Katyn as long as that, too?

OBERHÄUSER: I was there until the command of the army group transferred
its headquarters farther west.

DR. STAHMER: What were your relations with the commanders of this
regiment?

OBERHÄUSER: My relations with the regimental commanders were most
hearty, both officially and privately, which is due to the fact that I
had been the first commander of that regiment. I myself had formed the
regiment and I was most attached to it.

DR. STAHMER: Did you personally visit the little Dnieper Castle
frequently?

OBERHÄUSER: I went to the Dnieper Castle frequently; I can well say in
normal times once or twice a week.

DR. STAHMER: Did the commanders visit you in the meantime?

OBERHÄUSER: The commanders came to see me more frequently than I went to
see them.

DR. STAHMER: Did you know anything about the fact that near Smolensk,
about 25 to 45 kilometers to the west, there were three Russian camps
which contained Polish prisoners of war...

OBERHÄUSER: I knew nothing of that.

DR. STAHMER: ...who had fallen into the hands of the Germans?

OBERHÄUSER: I never heard anything about it.

DR. STAHMER: Was there an order, which is supposed to have come from
Berlin, that Polish officers who were prisoners of war were to be shot?

OBERHÄUSER: No, such an order was never issued.

DR. STAHMER: Did you yourself ever give such an order?

OBERHÄUSER: I have never given such an order.

DR. STAHMER: Do you know whether Colonel Bedenck or Colonel Ahrens ever
caused such shootings to be carried out?

OBERHÄUSER: I am not informed, but I consider it absolutely impossible.

DR. STAHMER: Why?

OBERHÄUSER: First, because such a decisive order would necessarily have
gone through me, for I was the direct superior of the regiment; and
second, because if such an order had been given, for a reason which I
could not understand, and transmitted to the regiment through some
obscure channel, then the commanders would most certainly have rung me
up or they would have come to see me and said, “General, they are asking
something here which we cannot understand.”

DR. STAHMER: Do you know First Lieutenant Hodt?

OBERHÄUSER: Yes, I know him.

DR. STAHMER: What position did he have in Regiment 537?

OBERHÄUSER: Hodt held various posts in the regiment. Usually, he was
sent ahead because he was a particularly qualified officer—especially
in regard to technical qualifications—in order to make preparations
when headquarters was being changed. He was therefore used as advance
party of the so-called technical company in order to establish the new
command posts; and then he was the regimental expert for the telephone
system, dealing with all matters relating to the telephone and teletype
system with the command headquarters of the army group. In my staff he
was occasionally detailed to fill the positions of any of my officers
when they were on leave.

DR. STAHMER: Was he also in charge of the advance party during the
advance on Katyn?

OBERHÄUSER: That I cannot say. I can only say that I personally heard
from my staff signal commander that he had sent an officer ahead, after
it had been ascertained how the headquarters were to be laid out, that
this officer was acting on my behalf, as at the time I still remained in
the old quarters, and he was preparing things in the way I wanted them
from the point of view of the signal commander. I do not know who was in
charge of that advance party at the time, but it is quite possible that
it was First Lieutenant Hodt.

DR. STAHMER: Were you in Katyn or the vicinity during the period after
the capture of Smolensk, which was, I believe, on or about 20 July 1941,
and up to the transfer of your staff to Katyn on 20 September?

OBERHÄUSER: I was in the vicinity. I was where the headquarters of the
army group wanted to settle down; that is, in the woods west of
Smolensk, where Katyn is located.

DR. STAHMER: Were you frequently there during that time?

OBERHÄUSER: I should say three or four times.

DR. STAHMER: Did you talk to Hodt on those occasions?

OBERHÄUSER: If he was the officer in charge of the advance party, which
I cannot say today, then I must certainly have talked to him. At any
rate, I did talk to the officer whom I had sent ahead and also to the
one from my regiment.

DR. STAHMER: Did you hear anything about shootings occurring during that
time?

OBERHÄUSER: I heard nothing, nor did I hear anything at all except in
1943, when the graves were opened.

DR. STAHMER: Did you or Regiment 537 have the necessary technical means,
pistols, ammunition, and so on, at your disposal which would have made
it possible to carry out shootings on such a scale?

OBERHÄUSER: The regiment, being a signal regiment in the rear area, was
not equipped with weapons and ammunition as well as the actual fighting
troops. Such a task, however, would have been something unusual for the
regiment; first, because a signal regiment has completely different
tasks, and secondly it would not have been in a position technically to
carry out such mass executions.

DR. STAHMER: Do you know the place where these graves were discovered
later on?

OBERHÄUSER: I know the site because I drove past it a great deal.

DR. STAHMER: Can you describe it more accurately?

OBERHÄUSER: Taking the main road Smolensk-Vitebsk, a path led through
wooded undulating ground. There were sandy spaces, which were, however,
covered with scrub and heather, and along that narrow path one got to
the Dnieper Castle from the main road.

DR. STAHMER: Were the places where these graves were later discovered
already overgrown when you got there?

OBERHÄUSER: They were overgrown just like the surrounding ground, and
there was no difference between them and the rest of the surroundings.

DR. STAHMER: In view of your knowledge of the place, would you consider
it possible that 11,000 Poles could have been buried at that spot,
people who may have been shot between June and September 1941?

OBERHÄUSER: I consider that it is out of the question, for the mere
reason that if the commander had known it at the time he would certainly
never have chosen this spot for his headquarters, next to 11,000 dead.

DR. STAHMER: Can you tell me how the graves were discovered?

OBERHÄUSER: Officially I had nothing to do with that. I only heard that
through local inhabitants or somebody else it had become known that
large-scale executions had taken place there years ago.

DR. STAHMER: From whom did you hear that?

OBERHÄUSER: Quite probably from the commander himself, who, because he
was located on the spot, had heard more about it than I had. But I
cannot remember exactly now.

DR. STAHMER: So you did not receive official notice about the discovery
of the graves, did you?

OBERHÄUSER: No, I never did.

DR. STAHMER: After the opening of the graves, did you talk to the German
or foreign members of the commission?

OBERHÄUSER: I have never talked to any members of that commission.

DR. STAHMER: I have no further questions, Mr. President.

THE PRESIDENT: Colonel Smirnov.

MR. COUNSELLOR SMIRNOV: Witness, you arrived in the region of Katyn in
September 1943?

OBERHÄUSER: 1941, not 1943.

MR. COUNSELLOR SMIRNOV: Excuse me, I meant September 1941. Is that
correct?

OBERHÄUSER: Yes, September 1941.

MR. COUNSELLOR SMIRNOV: And you contend that you did not know anything
either about the camps for Polish prisoners of war or the prisoners in
the hands of the German troops, is that so?

OBERHÄUSER: I have never heard anything about Polish prisoners of war
being in the hands of German troops.

MR. COUNSELLOR SMIRNOV: I understand that this had no relation to your
official activity as the commander of a signal regiment. But in spite of
this you may perhaps have witnessed that various German troops combed
the woods in the vicinity of the Smolensk-Vitebsk highway to capture
Polish prisoners of war who had escaped from the camps?

OBERHÄUSER: I never heard anything about troops going there in order to,
shall we say, recapture escaped Polish prisoners of war. I am hearing
this here for the first time.

MR. COUNSELLOR SMIRNOV: Please answer me. Have you perhaps seen German
military units escorting Polish prisoners of war who were captured in
the woods?

OBERHÄUSER: I have not seen that.

MR. COUNSELLOR SMIRNOV: Please answer the following question: You were
on good terms with Colonel Ahrens, were you not?

OBERHÄUSER: I have had good relations with all commanders of the
regiment.

MR. COUNSELLOR SMIRNOV: And in addition to that, you were his immediate
superior?

OBERHÄUSER: Right.

MR. COUNSELLOR SMIRNOV: Colonel Ahrens found out about the mass graves
at the end of 1941 or at the beginning of 1942. Did he tell you anything
about his discovery?

OBERHÄUSER: I cannot believe that Colonel Ahrens could have discovered
the graves in 1941. I cannot imagine that—I especially cannot imagine
that he would tell me nothing about it.

MR. COUNSELLOR SMIRNOV: In any case do you contend that neither in 1942
nor in 1943 did Colonel Ahrens report to you in regard to this affair?

OBERHÄUSER: Colonel Ahrens never told me anything about it, and he would
have told me if he had known.

MR. COUNSELLOR SMIRNOV: I am interested in the following answer which
you gave to a question by defense counsel. You remarked that the signal
regiment had not enough weapons to carry out shootings. What do you mean
by that? How many, and what kind of weapons did the regiment possess?

OBERHÄUSER: The signal regiment were mostly equipped with pistols and
with carbines. They had no automatic arms.

MR. COUNSELLOR SMIRNOV: Pistols? Of what caliber?

OBERHÄUSER: They were Parabellum pistols. The caliber, I think, was
7.65, but I cannot remember for certain.

MR. COUNSELLOR SMIRNOV: Parabellum pistols, 7.65, or were there Mauser
pistols or any other kind of weapons?

OBERHÄUSER: That varied. Noncommissioned officers, as far as I know, had
the smaller Mauser pistols. Actually, only noncommissioned officers were
equipped with pistols. The majority of the men had carbines.

MR. COUNSELLOR SMIRNOV: I would like you to tell us some more about the
pistols. You say that they were 7.65 caliber pistols, is that so?

OBERHÄUSER: I cannot now, at the moment, give you exact information
about the caliber. I only know that the Parabellum pistol was 7.65 or
some such caliber. I think the Mauser pistol had a somewhat smaller
caliber.

MR. COUNSELLOR SMIRNOV: And Walter pistols?

OBERHÄUSER: There were also Walters. I think they had the same caliber
as the Mauser. It is a smaller, black pistol; and it is better than the
somewhat cumbersome Parabellum pistol which is heavier.

MR. COUNSELLOR SMIRNOV: Yes, that is quite correct. Please tell me
whether in this regiment the noncommissioned officers possessed those
small pistols.

OBERHÄUSER: As a rule, noncommissioned officers had pistols but not
carbines.

MR. COUNSELLOR SMIRNOV: I see. Perhaps you can tell us about how many
pistols this signal regiment possessed?

OBERHÄUSER: Of course I cannot tell you that now. Let us assume that
every noncommissioned officer had a pistol...

MR. COUNSELLOR SMIRNOV: And how many noncommissioned officers were
there? How many pistols in all were there in your regiment if you
consider that every noncommissioned officer had a pistol?

OBERHÄUSER: Assuming that every noncommissioned officer in the regiment
had a pistol that would amount to 15 per company, a total of 150.
However, to give a definite statement about that figure retrospectively
now is impossible. I can only give you clues.

MR. COUNSELLOR SMIRNOV: Why do you consider that 150 pistols would be
insufficient to carry out these mass killings which went on over a
period of time? What makes you so positive about that?

OBERHÄUSER: Because a signal regiment of an army group deployed over a
large area as in the case of Army Group Center is never together as a
unit. The regiment was spread out from Kolodov as far as Vitebsk, and
there were small detachments everywhere, and in the headquarters of the
regiment there were comparatively few people; in other words, there were
never 150 pistols in one and the same place.

MR. COUNSELLOR SMIRNOV: The main part of the signal regiment was located
in the Katyn woods, was it not?

OBERHÄUSER: I did not understand your question.

MR. COUNSELLOR SMIRNOV: The main portions of your regiment were located
in the Katyn woods, were they not?

OBERHÄUSER: The first company was mainly located between the regimental
staff quarters and the actual command post of the army group. That was
the company which was handling the communications, the telephone and
teleprinted communications for the army group. It was the company,
therefore, which was nearest.

MR. COUNSELLOR SMIRNOV: One more question. The officers of your regiment
were obviously armed with pistols and not with carbines?

OBERHÄUSER: Officers had pistols only, and as a rule they only had small
ones. Possibly one or the other may have had a Parabellum pistol.

MR. COUNSELLOR SMIRNOV: That is to say either a Walter or a Mauser?

OBERHÄUSER: Yes.

MR. COUNSELLOR SMIRNOV: Did you frequently visit the villa where the
headquarters of Regiment 537 was located?

OBERHÄUSER: Yes, I was there at least once, sometimes twice, a week.

MR. COUNSELLOR SMIRNOV: Were you ever interested as to why soldiers from
other military units visited the villa in Kozy Gory and why special beds
were prepared for them as well as drinks and food?

OBERHÄUSER: I cannot imagine that there were any large-scale visits of
other soldiers or members of other units. I do not know anything about
that.

MR. COUNSELLOR SMIRNOV: I am not speaking about a great number. I am
speaking of 20 or sometimes 25 men.

OBERHÄUSER: If the regimental commander summoned his company and
detachment commanders for an officers’ meeting, then, of course, there
would be a few dozen of such officers who normally would not be seen
there.

MR. COUNSELLOR SMIRNOV: No, I am not talking about officers who belonged
to the unit. I would like to ask you another somewhat different
question. Would the number 537 appear on the shoulder straps of the
soldiers belonging to that regiment?

OBERHÄUSER: As far as I recollect the number was on the shoulder straps,
but at the beginning of the war it could be concealed by a camouflage
flap. I cannot remember whether during that particular period these
covers were used or not. At any rate at the street entrance to the
regimental headquarters there was a black-yellow-black flag, which bore
the number 537.

MR. COUNSELLOR SMIRNOV: I am speaking of soldiers who came to the villa
in Kozy Gory, and who did not have the number 537 on their shoulder
straps. Were you ever interested in finding out what those soldiers did
there in September and October of 1941? Did the commander of the unit
report to you about this?

OBERHÄUSER: May I ask what year this was supposed to be, 1941?

MR. COUNSELLOR SMIRNOV: Yes, 1941, that is the year which is concerned.

OBERHÄUSER: I do not think that at that time there was much coming and
going of outsiders at staff headquarters because during that period
everything was in course of construction and I cannot imagine that other
units, even small groups of 20 or 25 people should have been there. I
personally, as I have told you, was there only once or twice weekly, and
not before September or October.

MR. COUNSELLOR SMIRNOV: Beginning with what date of September did you
start visiting there? You said it was in September but not from what
date.

OBERHÄUSER: I cannot tell you. The commander of the army group moved at
the end of September from Borossilov, shortly before the battle of
Vyazma, which was on 2 October, into that district.

MR. COUNSELLOR SMIRNOV: Consequently, you could start visiting this
villa for instance only at the end of September or the beginning of
October 1941?

OBERHÄUSER: It was only then that the little castle was finally
occupied, for the regiment did not arrive much earlier than we from the
command of the army group.

THE PRESIDENT: Colonel Smirnov, is it necessary to go into this detail?
Have you any particular purpose in going into so much detail?

MR. COUNSELLOR SMIRNOV: Mr. President, I ask this question for the
following reasons: Later we shall interrogate witnesses for the Soviet
Prosecution on the same point and particularly the chief of the
medico-legal investigation. That is why I would like to ask the
permission of the Court to clarify this point concerning the time when
the witness visited the villa. That will be my last question to this
point.

THE PRESIDENT: Yes, very well. Do not go into greater detail than you
find absolutely necessary.

MR. COUNSELLOR SMIRNOV: Consequently, at the beginning of September and
the first part of October 1941 you were not in the villa of Katyn woods
and you could not be there at the time, is that true?

OBERHÄUSER: I cannot remember that exactly. The regimental commander had
spotted the little castle and set it up for his staff headquarters. When
exactly he moved in I cannot know, because I had other jobs to do.

MR. COUNSELLOR SMIRNOV: No, I asked whether you personally could not
have been in the villa during the first part of September. Could you not
possibly have been there before 20 September?

OBERHÄUSER: I do not think so.

MR. COUNSELLOR SMIRNOV: I have no further questions, Mr. President.

THE PRESIDENT: Do you wish to re-examine, Dr. Stahmer?

DR. STAHMER: Unfortunately, Mr. President, I shall have to come back to
the question of time because it was not brought out too clearly during
these last questions.

When did Regiment 537 move into the castle?

OBERHÄUSER: I assume it was during September.

DR. STAHMER: Beginning or end of September?

OBERHÄUSER: Probably rather more toward the end of September.

DR. STAHMER: Until then only the advance party was there, or...

OBERHÄUSER: The advance party of the regiment was there and my officers
whom I had sent ahead.

DR. STAHMER: How many noncommissioned officers were with the advance
party?

OBERHÄUSER: I cannot tell you exactly how many the regiment sent. I
personally had sent one officer. Generally the regiment could not have
sent very many. As a rule, as is always the case, the regiment was still
operating at the old command post in Borossilov and simultaneously it
had to set up the new post. Consequently, during this period of
regrouping, on the point of moving a command of an army group, there is
always a considerable shortage of men. The old headquarters still has to
be looked after, the new post requires men for its construction, so that
as always during this period there were certainly too few people.

DR. STAHMER: Can you not even give us an estimate of the figure of that
advance party?

OBERHÄUSER: There were 30, 40, or 50 men.

DR. STAHMER: How many noncommissioned officers?

OBERHÄUSER: Probably one or two officers, a few noncommissioned
officers, and some men.

DR. STAHMER: The regiment was very widely spread out, was it not?

OBERHÄUSER: Yes.

DR. STAHMER: How far, approximately?

OBERHÄUSER: In the entire area of Army Group Center, shall we say
between Orel and Vitebsk—in that entire area they were widely
dispersed.

DR. STAHMER: How many kilometers was that, approximately?

OBERHÄUSER: More than 500 kilometers.

DR. STAHMER: Do you know Judge Advocate General Dr. Konrad of Army Group
Center?

OBERHÄUSER: Yes.

DR. STAHMER: Do you know whether, in 1943, he interrogated the local
inhabitants under oath about the date when the Polish officers were
supposed to have been shot in the woods of Katyn?

OBERHÄUSER: No, I do not know.

DR. STAHMER: I have no further questions, Mr. President.

THE PRESIDENT: Were there any Einsatzkommandos in the Katyn area during
the time that you were there?

OBERHÄUSER: Nothing has ever come to my knowledge about that.

THE PRESIDENT: Did you ever hear of an order to shoot Soviet commissars?

OBERHÄUSER: I only knew of that by hearsay.

THE PRESIDENT: When?

OBERHÄUSER: Probably at the beginning of the Russian campaign, I think.

THE PRESIDENT: Before the campaign started or after?

OBERHÄUSER: I cannot remember having heard anything like that before the
beginning of the campaign.

THE PRESIDENT: Who was to carry out that order?

OBERHÄUSER: Strictly speaking, signal troops are not really fighting
troops. Therefore, they really had nothing to do with that at all, and
therefore we were in no way affected by the order.

THE PRESIDENT: I did not ask you that. I asked you who had to carry out
the order.

OBERHÄUSER: Those who came into contact with these people, presumably.

THE PRESIDENT: Anybody who came in contact with Russian commissars had
to kill them; is that it?

OBERHÄUSER: No, I assume that it was the troops, the fighting troops,
the actual fighting troops at the front who first met the enemy. That
could only have applied to the army group. The signal regiment never
came into a position to meet commissars. That is probably why they were
not mentioned in the order or affected by it in any way.

THE PRESIDENT: The witness can retire.

MR. COUNSELLOR SMIRNOV: Mr. President, I ask permission to call as
witness the former deputy mayor of the city of Smolensk during the
German occupation, Professor of Astronomy, Boris Bazilevsky.

THE PRESIDENT: Yes, let him come in then.

[_The witness Bazilevsky took the stand._]

Will you state your full name, please?

BORIS BAZILEVSKY (Witness): Boris Bazilevsky.

THE PRESIDENT: Will you make this form of oath: I, a citizen of the
USSR—called as a witness in this case—solemnly promise and swear
before the High Tribunal—to say all that I know about this case—and to
add or to withhold nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

MR. COUNSELLOR SMIRNOV: With the permission of the Tribunal, I should
like to start with my interrogation, Mr. President.

THE PRESIDENT: Certainly.

MR. COUNSELLOR SMIRNOV: Please tell us, Witness, what your activity was
before the German occupation of the city and district of Smolensk and
where you were living in Smolensk.

BAZILEVSKY: Before the occupation of Smolensk and the surrounding
region...

MR. COUNSELLOR SMIRNOV: Please speak slowly.

BAZILEVSKY: ...I lived in the city of Smolensk and was professor first
at the Smolensk University and then of the Smolensk Pedagogical
Institute, and at the same time I was director of the Smolensk
Astronomical Observatory. For 10 years I was the dean of the physics and
mathematics faculty, and in the last years I was deputy to the director
of the scientific department of the Institute.

MR. COUNSELLOR SMIRNOV: How many years did you live in Smolensk previous
to the German occupation?

BAZILEVSKY: From 1919.

MR. COUNSELLOR SMIRNOV: Do you know what the so-called Katyn wood was?

BAZILEVSKY: Yes.

MR. COUNSELLOR SMIRNOV: Please speak slowly.

BAZILEVSKY: Actually, it was a grove. It was the favorite resort of the
inhabitants of Smolensk who spent their holidays and vacations there.

MR. COUNSELLOR SMIRNOV: Was this wood before the war a special
reservation which was fenced or guarded by armed patrols, by watch dogs?

BAZILEVSKY: During the many years that I lived in Smolensk, this place
was never fenced; and no restrictions were ever placed on access to it.
I personally used to go there very frequently. The last time I was there
was in 1940 and in the spring of 1941. In this wood there was also a
camp for engineers. Thus, there was free access to this place for
everybody.

MR. COUNSELLOR SMIRNOV: Please tell me in what year there was an
engineer camp?

BAZILEVSKY: As far as I know, it was there for many years.

MR. COUNSELLOR SMIRNOV: Please speak slowly.

THE PRESIDENT: Wait a minute. Professor, will you wait a minute, please?
When you see that yellow light go on, it means that you are going too
fast; and when you are asked a question, will you pause before you
answer it? Do you understand?

BAZILEVSKY: Yes.

MR. COUNSELLOR SMIRNOV: Will you please repeat your answer, and very
slowly, if you please.

BAZILEVSKY: The last time I know that the engineer camp was in the area
of the Katyn wood was in 1941.

MR. COUNSELLOR SMIRNOV: Consequently, if I understand you correctly, in
1940 and 1941 before the beginning of the war at any rate—and you speak
of the spring of 1941—the Katyn wood was not a special reservation and
was accessible to everybody?

BAZILEVSKY: Yes. I say that that was the situation.

MR. COUNSELLOR SMIRNOV: Do you say this as an eyewitness or from
hearsay?

BAZILEVSKY: No, I say it as an eyewitness who used to go there
frequently.

MR. COUNSELLOR SMIRNOV: Please tell the Tribunal under what
circumstances you became the first deputy mayor of Smolensk during the
period of the German occupation. Please speak slowly.

BAZILEVSKY: I was an administration official; and I did not have an
opportunity of leaving the place in time, because I was busy in saving
the particularly precious library of the Institute and the very valuable
equipment. In the circumstances I could not try to escape before the
evening of the 15th, but then I did not succeed in catching the train. I
therefore decided to leave the city on 16 July in the morning, but
during the night of 15 to 16 the city was unexpectedly occupied by
German troops. All the bridges across the Dnieper were blown up, and I
found myself in captivity.

After some time, on 20 July, a group of German soldiers came to the
observatory of which I was the director. They took down that I was the
director and that I was living there and that there was also a professor
of physics, Efimov, living in the same building.

In the evening of 20 July two German officers came to me and brought me
to the headquarters of the unit which had occupied Smolensk. After
checking my _personalia_ and after a short conversation, they suggested
that I become mayor of the city. I refused, basing my refusal on the
fact that I was a professor of astronomy and that, as I had no
experience in such matters, I could not undertake this post. They then
declared categorically and with threats, “We are going to force the
Russian intelligentsia to work.”

MR. COUNSELLOR SMIRNOV: Thus, if I understand you correctly, the Germans
forced you by threats to become the deputy mayor of Smolensk?

BAZILEVSKY: That is not all. They told me also that in a few days I
would be summoned to the Kommandantur.

On 25 July a man in civilian clothes appeared at my apartment,
accompanied by a German policeman, and represented himself as a lawyer,
Menschagin. He declared that he came by order of the military
headquarters and that I should accompany him immediately to
headquarters.

THE PRESIDENT: You are spending a lot of time on how he came to be mayor
of Smolensk.

MR. COUNSELLOR SMIRNOV: Will you please allow me to pass to other
questions, Mr. President? Thank you for your observations.

[_Turning to the witness._] Who was your immediate superior? Who was the
mayor of Smolensk?

BAZILEVSKY: Menschagin.

MR. COUNSELLOR SMIRNOV: What were the relations between this man and the
German administration and particularly with the German Kommandantur?

BAZILEVSKY: These relations were very good and became closer and closer
every day.

MR. COUNSELLOR SMIRNOV: Is it correct to say that Menschagin was the
trustee of the German administration and that they even gave him secret
information?

BAZILEVSKY: Yes.

MR. COUNSELLOR SMIRNOV: Do you know that in the vicinity of Smolensk
there were Polish prisoners of war?

BAZILEVSKY: Yes, I do very well.

MR. COUNSELLOR SMIRNOV: Do you know what they were doing?

THE PRESIDENT: I do not know what this is going to prove. You presumably
do, but can you not come nearer to the point?

MR. COUNSELLOR SMIRNOV: He said that he knew there were Polish prisoners
of war in Smolensk; and, with the permission of the Tribunal, I would
like to ask the witness what these prisoners of war were doing.

THE PRESIDENT: Very well; go on.

MR. COUNSELLOR SMIRNOV: Please answer. What were the Polish prisoners of
war doing in the vicinity of Smolensk, and at what time?

BAZILEVSKY: In the spring of 1941 and at the beginning of the summer
they were working on the restoration of the roads, Moscow-Minsk and
Smolensk-Vitebsk.

MR. COUNSELLOR SMIRNOV: What do you know about the further fate of the
Polish prisoners of war?

Z BAZILEVSKY: Thanks to the position that I occupied, I learned very
early about the fate of the Polish prisoners of war.

MR. COUNSELLOR SMIRNOV: Please tell the Tribunal what you know about it.

BAZILEVSKY: In the camp for Russian prisoners of war known as “Dulag
126” there prevailed such a severe regime that prisoners of war were
dying by the hundreds every day; for this reason I tried to free all
those from this camp for whose release a reason could be given. I
learned that in this camp there was also a very well-known pedagogue
named Zhiglinski. I asked Menschagin to make representations to the
German Kommandantur of Smolensk, and in particular to Von Schwetz, and
to plead for the release of Zhiglinski from this camp.

MR. COUNSELLOR SMIRNOV: Please do not go into detail and do not waste
time, but tell the Tribunal about your conversation with Menschagin.
What did he tell you?

BAZILEVSKY: Menschagin answered my request with, “What is the use? We
can save one, but hundreds will die.” However, I insisted; and
Menschagin, after some hesitation, agreed to put this request to the
German Kommandantur.

MR. COUNSELLOR SMIRNOV: Please be short and tell us what Menschagin told
you when he came back from the German Kommandantur.

BAZILEVSKY: Two days later he told me that he was in a very difficult
situation on account of my demand. Von Schwetz had refused the request
by referring to an instruction from Berlin saying that a very severe
regime should prevail with respect to prisoners of war.

MR. COUNSELLOR SMIRNOV: What did he tell you about Polish prisoners of
war?

BAZILEVSKY: As to Polish prisoners of war, he told me that Russians
would at least be allowed to die in the camps while there were proposals
to exterminate the Poles.

MR. COUNSELLOR SMIRNOV: What else was said?

BAZILEVSKY: I replied, “What do you mean? What do you want to say? How
do you understand this?” And Menschagin answered, “You should understand
this in the very literal sense of these words.” He asked me not to tell
anybody about it, since it was a great secret.

MR. COUNSELLOR SMIRNOV: When did this conversation of yours take place
with Menschagin? In what month, and on what day?

BAZILEVSKY: This conversation took place at the beginning of September.
I cannot remember the exact date.

MR. COUNSELLOR SMIRNOV: But you remember it was the beginning of
September?

BAZILEVSKY: Yes.

MR. COUNSELLOR SMIRNOV: Did you ever come back again to the fate of
Polish prisoners of war in your further conversations with Menschagin?

BAZILEVSKY: Yes.

MR. COUNSELLOR SMIRNOV: Can you tell us when?

BAZILEVSKY: Two weeks later—that is to say, at the end of September—I
could not help asking him, “What was the fate of the Polish prisoners of
war?” At first Menschagin hesitated, and then he told me haltingly,
“They have already died. It is all over for them.”

MR. COUNSELLOR SMIRNOV: Did he tell you where they were killed?

BAZILEVSKY: He told me that they had been shot in the vicinity of
Smolensk, as Von Schwetz told him.

MR. COUNSELLOR SMIRNOV: Did he mention the exact place?

BAZILEVSKY: No, he did not mention the exact place.

MR. COUNSELLOR SMIRNOV: Tell me this. Did you, in turn, tell anybody
about the extermination, by Hitlerites, of the Polish prisoners of war
near Smolensk?

BAZILEVSKY: I talked about this to Professor Efimov, who was living in
the same house with me. Besides him, a few days later I had a
conversation about it with Dr. Nikolski, who was the medical officer of
the city. However, I found out that Nikolski knew about this crime
already from some other source.

MR. COUNSELLOR SMIRNOV: Did Menschagin tell you why these shootings took
place?

BAZILEVSKY: Yes. When he told me that the prisoners of war had been
killed, he emphasized once more the necessity of keeping it strictly
secret in order to avoid disagreeable consequences. He started to
explain to me the reasons for the German behavior with respect to the
Polish prisoners of war. He pointed out that this was only one measure
of the general system of treating Polish prisoners of war.

MR. COUNSELLOR SMIRNOV: Did you hear anything about the extermination of
the Poles from the employees of the German Kommandantur?

BAZILEVSKY: Yes, 2 or 3 days later.

THE PRESIDENT: You are both going too fast, and you are not pausing
enough. You are putting your questions whilst the answers are coming
through. You must have longer pauses, and go slower.

MR. COUNSELLOR SMIRNOV: Thank you, Mr. President.

[_Turning to the witness._] Please continue, but slowly.

BAZILEVSKY: I do not know where I was.

MR. COUNSELLOR SMIRNOV: I asked you whether any of the employees of the
German Kommandantur told you anything about the extermination of the
Poles.

BAZILEVSKY: Two or three days later, when I visited the office of
Menschagin, I met there an interpreter, the Sonderführer of the 7th
Division of the German Kommandantur who was in charge of the Russian
administration and who had a conversation with Menschagin concerning the
Poles. He came from the Baltic region.

MR. COUNSELLOR SMIRNOV: Perhaps you can tell us briefly what he said.

BAZILEVSKY: When I entered the room he was saying, “The Poles are a
useless people, and exterminated they may serve as fertilizer and for
the enlargement of living space for the German nation.”

THE PRESIDENT: You are doing exactly what I said just now. You are
asking the questions before the translation comes through.

MR. COUNSELLOR SMIRNOV: Excuse me, Mr. President, I will try to speak
more slowly.

[_Turning to the witness._] Did you learn from Menschagin anything
definite about the shooting of Polish prisoners of war?

BAZILEVSKY: When I entered the room I heard the conversation with
Hirschfeld. I missed the beginning, but from the context of the
conversation it was clear that they spoke about this event.

MR. COUNSELLOR SMIRNOV: Did Menschagin, when telling you about the
shooting of Polish prisoners of war, refer to Von Schwetz?

BAZILEVSKY: Yes; I had the impression that he referred to Von Schwetz.
But evidently—and this is my firm belief—he also spoke about it with
private persons in the Kommandantur.

MR. COUNSELLOR SMIRNOV: When did Menschagin tell you that Polish
prisoners of war were killed near Smolensk?

BAZILEVSKY: It was at the end of September.

MR. COUNSELLOR SMIRNOV: I have no further questions to put to this
witness, Mr. President.

THE PRESIDENT: The Tribunal will adjourn.

                        [_A recess was taken._]

MARSHAL: If it please the Tribunal, the Defendant Hess is absent.

THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: Witness, in your testimony, just before recess, you read
out your testimony, if I observed correctly. Will you tell me whether
that was so or not?

BAZILEVSKY: I was not reading anything. I have only a plan of the
courtroom in my hand.

DR. STAHMER: It looked to me as though you were reading out your
answers. How can you explain the fact that the interpreter already had
your answer in his hands?

BAZILEVSKY: I do not know how the interpreters could have had my answers
beforehand. The testimony which I am giving was, however, known to the
Commission beforehand—that is, my testimony during the preliminary
examination.

DR. STAHMER: Do you know the little castle on the Dnieper, the little
villa? Did you not understand me or hear me? Do you know the little
castle on the Dnieper, the little villa on the Dnieper?

BAZILEVSKY: I do not know which villa you mean. There were quite a
number of villas on the Dnieper.

DR. STAHMER: The house which was near the Katyn wood on the steep bank
of the Dnieper River.

BAZILEVSKY: I still do not quite understand which house you mean. The
banks of the Dnieper are long, and therefore your question is quite
incomprehensible to me.

DR. STAHMER: Do you know where the graves of Katyn were found, in which
11,000 Polish officers were buried?

BAZILEVSKY: I was not there. I did not see the Katyn burial grounds.

DR. STAHMER: Had you never been in the Katyn wood?

BAZILEVSKY: As I already said, I was there not once but many times.

DR. STAHMER: Do you know where this mass burial site was located?

BAZILEVSKY: How can I know where the burial grounds were situated when I
could not go there since the occupation?

DR. STAHMER: How do you know that the little wood was not fenced in?

BAZILEVSKY: Before the occupation of the Smolensk district by the German
troops, the entire area, as I already stated, was not surrounded by any
barrier; but according to hearsay I knew that after the occupation
access to this wood was prohibited by the German local command.

DR. STAHMER: Therefore you have no knowledge of the fact that here in
the Katyn wood a sanitarium or a convalescent home of the GPU was
located?

BAZILEVSKY: I know very well; that was known to all the citizens of
Smolensk.

DR. STAHMER: Then, of course, you also know exactly which house I
referred to in my question?

BAZILEVSKY: I, myself, had never been in that house. In general, access
to that house was only allowed to the families of the employees of the
Ministry of the Interior. As to other persons, there was no need and no
facility for them to go there.

DR. STAHMER: The house, therefore, was closed off?

BAZILEVSKY: No, the house was not forbidden to strangers; but why should
people go there if they had no business there or were not in the
sanitarium? The garden, of course, was open to the public.

DR. STAHMER: Were there not guards stationed there?

BAZILEVSKY: I have never seen any.

DR. STAHMER: Is this Russian witness who reported to you about the
matter concerning the Polish officers, is this witness still alive?

BAZILEVSKY: Mr. Counsel, you probably mean Mayor Menschagin, if I
understand you rightly?

DR. STAHMER: When you read your testimony off, it was not easy for me to
follow. What was the mayor’s name? Menschagin? Is he still alive?

BAZILEVSKY: Menschagin went away together with the German troops during
their retreat, and I remained, and Menschagin’s fate is unknown to me.

THE PRESIDENT: Dr. Stahmer, you are not entitled to say to the witness,
“when you read your testimony off,” just now, because he denied that he
read his testimony off and there is no evidence that he has read it off.

DR. STAHMER: Did this Russian witness tell you that the Polish officers
had come from the camp at Kosielsk?

BAZILEVSKY: Do you mean the camp at Kosielsk? Yes?

DR. STAHMER: Yes.

BAZILEVSKY: The witness did not say that.

DR. STAHMER: Do you know that place and locality?

BAZILEVSKY: Do you mean Kosielsk? I do, yes. In 1940, in the month of
August—at the end of August—I spent my leave there with my wife.

DR. STAHMER: Do you know whether there were Polish officers at that
place in a Russian prisoner-of-war camp?

BAZILEVSKY: Yes, I know that.

DR. STAHMER: Until what time did these prisoners of war remain there?

BAZILEVSKY: I do not know that for sure but at the end of August 1940
they were there. I am quite sure about that.

DR. STAHMER: Do you know whether this camp, together with its inmates,
fell into German hands?

BAZILEVSKY: Personally, that is, from my own observation, I do not know
it; but according to rumors, it appears to have been the case. That is,
of course, not my own testimony; I myself did not see it, but I heard
about it only.

DR. STAHMER: Did you hear what happened to these prisoners?

BAZILEVSKY: Yes, I heard, of course, that they remained there and could
not be evacuated.

DR. STAHMER: Did you hear what became of them?

BAZILEVSKY: I have already testified in my answers to the prosecutor
that they were shot on the order of the German Command.

DR. STAHMER: And where did these shootings take place?

BAZILEVSKY: Mr. Defense Counsel, you have apparently not heard my
answers. I already testified that Mayor Menschagin said that they were
shot in the neighborhood of Smolensk, but where he did not tell me.

DR. STAHMER: How many prisoners were involved?

BAZILEVSKY: Do you mean to say, how many were mentioned in the
conversation with Menschagin? I do not understand your question. Do you
mean to say according to the reports of Menschagin?

DR. STAHMER: What was the figure given to you by Menschagin?

BAZILEVSKY: Menschagin did not tell me any number. I repeat that this
conversation took place on the last days of September 1941.

DR. STAHMER: Can you give us the name of an eyewitness who was present
at this shooting or anyone who saw this shooting?

BAZILEVSKY: I believe that these executions were carried out under such
circumstances that I think it scarcely possible that any Russian
witnesses could be present.

THE PRESIDENT: Witness, you should answer the question directly. You
were asked, “Can you give the names of anybody who was there?” You can
answer that “yes” or “no” and then you can add any explanations
necessary.

BAZILEVSKY: I will follow your instructions, Mr. President.

THE PRESIDENT: Can you give the name of anybody who saw the executions?

BAZILEVSKY: No, I cannot name any eyewitness.

DR. STAHMER: What German unit is supposed to have carried out the
shootings?

BAZILEVSKY: I cannot answer that exactly. It is logical to assume that
it was the construction battalion which was stationed there; but of
course I could not know the exact organization of the German troops.

DR. STAHMER: Did the Poles involved here come from the camp at Kosielsk?

BAZILEVSKY: In general, this was not mentioned in the conversations of
that time, but I certainly do not know that; besides these might have
been any other Polish prisoners of war who had not been at Kosielsk
previously.

DR. STAHMER: Did you yourself see Polish officers?

BAZILEVSKY: I did not see them myself, but my students saw them, and
they told me that they had seen them in 1941.

DR. STAHMER: And where did they see them?

BAZILEVSKY: On the road where they were doing repair work at the
beginning of summer, 1941.

DR. STAHMER: In what general area or location?

BAZILEVSKY: In the district of the Moscow-Minsk highway, somewhat to the
west of Smolensk.

DR. STAHMER: Can you testify whether the Russian Army Command had a
report to the effect that Polish prisoners at the camp at Kosielsk had
fallen into the hands of the Germans?

BAZILEVSKY: No, I have no knowledge of that.

DR. STAHMER: What is the name of the German official or employee with
whom you talked at the Kommandantur?

BAZILEVSKY: Not in the Kommandantur, but in Menschagin’s office. His
name was Hirschfeld.

DR. STAHMER: What was his position?

BAZILEVSKY: He was Sonderführer of the 7th Detachment of the German
Kommandantur in the town of Smolensk.

DR. STAHMER: I have no further questions, Mr. President—just another
question or two, Mr. President.

[_Turning to the witness._] Were you punished by the Russian Government
on account of your collaboration with the German authorities?

BAZILEVSKY: No, I was not.

DR. STAHMER: Are you at liberty?

BAZILEVSKY: Not only am I at liberty; but, as I have already stated, I
am still professor at two universities.

DR. STAHMER: Therefore, you are back in office.

BAZILEVSKY: Yes.

THE PRESIDENT: Colonel Smirnov, do you wish to re-examine?

MR. COUNSELLOR SMIRNOV: No, Mr. President, I have no further questions
to put to the witness.

THE PRESIDENT: Witness, do you know whether the man, whose name I
understand to be Menschagin, was told about these matters or whether he
himself had any direct knowledge of them?

BAZILEVSKY: From Menschagin’s own words, I understood quite definitely
that he had heard those things himself at the Kommandantur, particularly
from Von Schwetz, who was the commander from the beginning of the
occupation.

THE PRESIDENT: The witness can retire.

MR. COUNSELLOR SMIRNOV: Mr. President, I beg the Tribunal to allow me to
call as witness Marko Antonov Markov, a Bulgarian citizen, professor at
the University of Sofia.

[_The interpreter Valev and the witness Markov took the stand._]

THE PRESIDENT: Are you the interpreter?

LUDOMIR VALEV (Interpreter): Yes, Sir.

THE PRESIDENT: Will you give us your full name?

VALEV: Ludomir Valev.

THE PRESIDENT: Will you repeat this oath after me: I swear before God
and the Law—that I will interpret truthfully and to the best of my
skill—the evidence to be given by the witness.

[_The interpreter repeated the oath._]

THE PRESIDENT: [_To the witness._] Will you give us your full name,
please?

DR. MARKO ANTONOV MARKOV (Witness): Dr. Marko Antonov Markov.

THE PRESIDENT: Will you repeat this oath after me: I swear—as a witness
in this case—that I will speak only the truth—being aware of my
responsibility before God and the Law—and that I will withhold and add
nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

MR. DODD: Mr. President, before this witness is examined, I would like
to call to the attention of the Tribunal the fact that Dr. Stahmer asked
the preceding witness a question which I understood went: How did it
happen that the interpreters had the questions and the answers to your
questions if you didn’t have them before you? Now that question implied
that Dr. Stahmer had some information that the interpreters did have the
answers to the questions, and I sent a note up to the interpreters, and
I have the answer from the lieutenant in charge that no one there had
any answers or questions, and I think it should be made clear on the
record.

THE PRESIDENT: Yes, I think so, too.

DR. STAHMER: I was advised of this fact outside the courtroom. If it is
not a fact, I wish to withdraw my statement. I was informed outside the
courtroom from a trustworthy source. I do not recall the name of the
person who told me, I shall have to ascertain it.

THE PRESIDENT: Such statements ought not be made by counsel until they
have verified them.

MR. COUNSELLOR SMIRNOV: May I begin the examination of this witness, Mr.
President?

THE PRESIDENT: The examination, yes.

MR. COUNSELLOR SMIRNOV: Witness, I beg you to tell us briefly, without
taking up the time of the Tribunal with too many details, under what
conditions you were included in the so-called International Medical
Commission set up by the Germans in the month of April 1943 for the
examination of the graves of Polish officers in the Katyn woods.

I beg you, when answering me, to pause between the question I put to you
and your own answer.

MARKOV: This occurred at the end of April 1943. While working in the
Medico-Legal Institute, where I am still working, I was called to the
telephone by Dr. Guerow.

THE PRESIDENT: The witness must stop before the interpreter begins.
Otherwise, the voices come over the microphone together. So the
interpreter must wait until the witness has finished his answer before
he repeats it.

Now, the witness has said—at least this is what I heard—that in April
1943 he was called on the telephone.

MARKOV: I was called to the telephone by Dr. Guerow, the secretary of
Dr. Filoff who was then Prime Minister of Bulgaria. I was told that I
was to take part, as representative of the Bulgarian Government, in the
work of an international medical commission which had to examine the
corpses of Polish officers discovered in the Katyn wood.

Not wishing to go, I answered that I had to replace the director of my
Institute who was away in the country. Dr. Guerow told me that according
to an instruction of the Minister of Foreign Affairs, who had sent the
telegram, it was precisely in order to replace him that I would have to
go there. Guerow told me to come to the Ministry. There I asked him if I
could refuse to comply with this order. He answered that we were in a
state of war and that the Government could send anybody wherever and
whenever they deemed it necessary.

Guerow took me to the first secretary of the Minister of Foreign
Affairs, Schuchmanov. Schuchmanov repeated this order and told me that
we were to examine the corpses of thousands of Polish officers. I
answered that to examine thousands of corpses would take several months,
but Schuchmanov said that the Germans had already exhumed a great number
of these corpses and that I would have to go, together with other
members of the commission, in order to see what had already been done
and in order to sign, as Bulgarian representative, the report of the
proceedings which had already been drafted. After that, I was taken to
the German Legation, to Counsellor Mormann, who arranged all the
technical details of the trip. This was on Saturday; and on Monday
morning, 26 April, I flew to Berlin. There I was met by an official of
the Bulgarian Legation and I was lodged at the Hotel Adlon.

MR. COUNSELLOR SMIRNOV: Please answer the next question: Who took part
in this so-called International Commission, and when did they leave for
Katyn?

MARKOV: On the next day, 27 April, we stayed in Berlin and the other
members of the commission arrived there too.

MR. COUNSELLOR SMIRNOV: Who were they?

MARKOV: They were the following, besides myself: Dr. Birkle, chief
doctor of the Ministry of Justice and first assistant of the Institute
of Forensic Medicine and Criminology at Bucharest; Dr. Miloslavich,
professor of forensic medicine and criminology at Zagreb University, who
was representative for Croatia; Professor Palmieri, who was professor
for forensic medicine and criminology at Naples; Dr. Orsos, professor of
forensic medicine and criminology at Budapest; Dr. Subik, professor of
pathological anatomy at the University of Bratislava and chief of the
State Department for Health for Slovakia; Dr. Hajek, professor for
forensic medicine and criminology at Prague, who represented the
so-called Protectorate of Bohemia and Moravia; Professor Naville,
professor of forensic medicine at the University of Geneva,
representative for Switzerland; Dr. Speleers, professor for
ophthalmology at Ghent University, who represented Belgium; Dr. De
Burlett, professor of anatomy at the University of Groningen,
representing Holland; Dr. Tramsen, vice chancellor of the Institute for
forensic medicine at Copenhagen University, representing Denmark; Dr.
Saxen, who was professor for pathological anatomy at Helsinki
University, Finland.

During the investigations of the commission, a Dr. Costeduat was
missing; he declared that he could attend only as a personal
representative of President Laval. Professor Piga from Madrid also
arrived, an elderly gentleman who did not take any part in the work of
the commission. It was stated later that he was ill as a result of the
long journey.

MR. COUNSELLOR SMIRNOV: Were all these persons flown to Katyn?

MARKOV: All these persons arrived at Katyn with the exception of
Professor Piga.

MR. COUNSELLOR SMIRNOV: Who besides the members of the commission left
for Katyn with you?

MARKOV: On the 28th we took off from Tempelhof Airdrome, Berlin, for
Katyn. We took off in two airplanes which carried about 15 to 20 persons
each.

MR. COUNSELLOR SMIRNOV: Maybe you can tell us briefly who was there?

MARKOV: Together with us was Director Dietz, who met us and accompanied
us. He represented the Ministry of Public Health. There were also press
representatives, and two representatives of the Ministry for Foreign
Affairs.

MR. COUNSELLOR SMIRNOV: I beg you to stop with these details and to tell
me when the commission arrived in Katyn?

MARKOV: The commission arrived in Smolensk on 28 April, in the evening.

MR. COUNSELLOR SMIRNOV: How many work days did the commission stay in
Smolensk? I stress work days.

MARKOV: We stayed in Smolensk 2 days only, 29 and 30 April 1943, and on
1 May, in the morning, we left Smolensk.

MR. COUNSELLOR SMIRNOV: How many times did the members of the commission
personally visit the mass graves in the Katyn wood?

MARKOV: We were twice in the Katyn wood, that is, in the forenoon of 29
and 30 April.

MR. COUNSELLOR SMIRNOV: I mean, how many hours did you spend each time
at the mass graves?

MARKOV: I consider not more than 3 or 4 hours each time.

MR. COUNSELLOR SMIRNOV: Were the members of the commission present at
least once during the opening of one of the graves?

MARKOV: No new graves were opened in our presence. We were shown only
several graves which had already been opened before we arrived.

MR. COUNSELLOR SMIRNOV: Therefore, you were shown already opened graves,
near which the corpses were already laid out, is that right?

MARKOV: Quite right. Near these opened graves were exhumed corpses
already laid out there.

MR. COUNSELLOR SMIRNOV: Were the necessary conditions for an objective
and comprehensive scientific examination of the corpses given to the
members of the commission?

MARKOV: The only part of our activity which could be characterized as a
scientific, medico-legal examination were the autopsies carried out by
certain members of the commission who were themselves medico-legal
experts; but there were only seven or eight of us who could lay claim to
that qualification, and as far as I recall only eight corpses were
opened. Each of us operated on one corpse, except Professor Hajek, who
dissected two corpses. Our further activity during these 2 days
consisted of a hasty inspection under the guidance of Germans. It was
like a tourists’ walk during which we saw the open graves; and we were
shown a peasant’s house, a few kilometers distant from the Katyn wood,
where in showcases papers and objects of various sorts were kept. We
were told that these papers and objects had been found in the clothes of
the corpses which had been exhumed.

MR. COUNSELLOR SMIRNOV: Were you actually present when these papers were
taken from the corpses or were they shown to you when they were already
under glass in display cabinets?

MARKOV: The documents which we saw in the glass cases had already been
removed from the bodies before we arrived.

MR. COUNSELLOR SMIRNOV: Were you allowed to investigate these documents,
to examine these documents, for instance, to see whether the papers were
impregnated with any acids which had developed by the decay of the
corpses, or to carry out any other kind of scientific examination?

MARKOV: We did not carry out any scientific examination of these papers.
As I have already told you, these papers were exhibited in glass cases
and we did not even touch them.

MR. COUNSELLOR SMIRNOV: But I would like you nevertheless to answer me
briefly with “yes” or “no,” a question which I have already put to you.
Were the members of the commission given facilities for an objective
examination?

MARKOV: In my opinion these working conditions can in no way be
qualified as adequate for a complete and objective scientific
examination. The only thing which bore the character of the scientific
nature was the autopsy which I carried out.

MR. COUNSELLOR SMIRNOV: But did I rightly understand you, that from the
11,000 corpses which were discovered only 8 were dissected by members of
the commission.

MARKOV: Quite right.

MR. COUNSELLOR SMIRNOV: Please answer the next question. In what
condition were these corpses? I would like you to describe the state in
which they were and also the state of the inner organs, the tissues, et
cetera.

MARKOV: As to the condition of the corpses in the Katyn graves, I can
only judge according to the state of the corpse which I myself
dissected. The condition of this corpse was, as far as I could
ascertain, the same as that of all the other corpses. The skin was still
well preserved, was in part leathery, of a brown-red color and on some
parts there were blue markings from the clothes. The nails and hair,
mostly, had already fallen out. In the head of the corpse I dissected
there was a small hole, a bullet wound in the back of the head. Only
pulpy substance remained of the brain. The muscles were still so well
preserved that one could even see the fibers of the sinews of heart
muscles and valves. The inner organs were also mainly in a good state of
preservation. But of course they were dried up, displaced, and of a dark
color. The stomach showed traces of some sort of contents. A part of the
fat had turned into wax. We were impressed by the fact that even when
pulled with brute force, no limbs had detached themselves.

I dictated a report, on the spot, on the result of my investigation. A
similar report was dictated by the other members of the commission who
examined corpses. This report was published by the Germans, under Number
827, in the book which they published.

MR. COUNSELLOR SMIRNOV: I would like you to answer the following
question. Did the medico-legal investigations testify to the fact that
the corpses had been in the graves already for 3 years?

MARKOV: As to that question I could judge only from the corpse on which
I myself had held a post mortem. The condition of this corpse, as I have
already stated, was typical of the average condition of the Katyn
corpses. These corpses were far removed from the stage of disintegration
of the soft parts, since the fat was only beginning to turn into wax. In
my opinion these corpses were buried for a shorter period of time than 3
years. I considered that the corpse which I dissected had been buried
for not more than 1 year or 18 months.

MR. COUNSELLOR SMIRNOV: Therefore, applying the criteria of the facts
which you ascertained to your experiences in Bulgaria—that is, in a
country of a more southern climate than Smolensk and where decay,
therefore, is more rapid—one must come to the conclusion that the
corpses that were exhumed in the Katyn forest had been lying under the
earth for not more than a year and a half? Did I understand you
correctly?

MARKOV: Yes, quite right. I had the impression that they had been buried
for not more than a year and a half.

THE PRESIDENT: The Tribunal will adjourn now.

      [_The Tribunal adjourned until 2 July 1946 at 1000 hours._]




                    ONE HUNDRED AND SIXTY-NINTH DAY
                          Tuesday, 2 July 1946


                           _Morning Session_

[_The witness Markov resumed the stand._]

MR. COUNSELLOR SMIRNOV: Witness, when did you, together with the other
members of the commission, perform the autopsies of these eight corpses?
What date was it exactly?

MARKOV: That was on 30 April, early in the day.

MR. COUNSELLOR SMIRNOV: And, on the basis of your personal observations,
you decided that the corpses were in the ground 1 year or 18 months at
the most?

MARKOV: That is correct.

MR. COUNSELLOR SMIRNOV: Before putting the next question to you, I
should like you to give me a brief answer to the following question: Is
it correct that in the practice of Bulgarian medical jurisprudence the
protocol about the autopsy contains two parts, a description and the
deductions?

MARKOV: Yes. In our practice, as well as in the practice of other
countries, so far as I know, it is done in the following way: First of
all, we give a description and then the deduction.

MR. COUNSELLOR SMIRNOV: Was a deduction contained in the record you made
regarding the autopsy?

MARKOV: My record of the autopsy contained only a description without
any conclusion.

MR. COUNSELLOR SMIRNOV: Why?

MARKOV: Because from the papers which were given to us there I
understood that they wanted us to say that the corpses had been in the
ground for 3 years. This could be deduced from the papers which were
shown to us in the little peasant hut about which I have already spoken.

MR. COUNSELLOR SMIRNOV: By the way, were these papers shown to you
before the autopsy or afterward?

MARKOV: Yes, the papers were given us 1 day before the autopsy.

MR. COUNSELLOR SMIRNOV: So you were...

THE PRESIDENT: Colonel Smirnov, you are interrupting the interpreter all
the time. Before the interpreter has finished the answer, you have put
another question. It is very difficult for us to hear the interpreter.

MR. COUNSELLOR SMIRNOV: Thank you for your indication, Mr. President.

MARKOV: Inasmuch as the objective deduction regarding the autopsy I
performed was in contradiction with this version, I did not make any
deductions.

MR. COUNSELLOR SMIRNOV: Consequently you did not make any deduction
because the objective data of the autopsy testified to the fact that the
corpses had been in the ground, not 3 years, but only 18 months?

THE PRESIDENT: Colonel Smirnov, you must remember that it is a double
translation, and unless you pause more than you are pausing, your voice
comes in upon the interpreter’s and we cannot hear the interpreter.

MR. COUNSELLOR SMIRNOV: Very well, Mr. President.

MARKOV: Yes, that is quite correct.

MR. COUNSELLOR SMIRNOV: Was there unanimity among the members of the
commission regarding the time the corpses had been in the graves?

MARKOV: Most of the members of the delegation who performed the
autopsies in the Katyn wood made their deductions without answering the
essential question regarding the time the corpses had been buried. Some
of them, as for instance, Professor Hajek, spoke about immaterial
things; as for instance, that one of the killed had had pleurisy. Some
of the others, as for instance, Professor Birkle from Bucharest, cut off
some hair from a corpse in order to determine the age of the corpse. In
my opinion that was quite immaterial. Professor Palmieri, on the basis
of the autopsy that he performed, said that the corpse had been in the
ground over a year but he did not determine exactly how long.

The only one who gave a definite statement in regard to the time the
corpses had been buried was Professor Miloslavich from Zagreb, and he
said it was 3 years. However, when the German book regarding Katyn was
published, I read the result of his impartial statement regarding the
corpse on which he had performed the autopsy. I had the impression that
the corpse on which he had performed the autopsy did not differ in its
stage of decomposition from the other corpses. This led me to think that
his statement that the corpses had been in the ground for 3 years did
not coincide with the facts of his description.

COUNSELLOR SMIRNOV: I would like to ask you to reply to the following
question. Were there many skulls found by the members of the commission
with signs of so-called _pseudocallus_? By the way, inasmuch as this
term is not known in the usual books on medical jurisprudence and in
general criminalistic terminology, I should like you to give us an exact
explanation of what Professor Orsos, of Budapest, means by the term
_pseudocallus_.

THE PRESIDENT: Would you repeat that question?

MR. COUNSELLOR SMIRNOV: Were there many skulls with signs of so-called
_pseudocallus_ which were submitted to the members of the commission?
Inasmuch as this term is not known in the usual books on medical
jurisprudence, I should like you to give us a detailed explanation of
what Professor Orsos means by the term _pseudocallus_.

THE PRESIDENT: What are you saying the skulls had? You asked if there
were many skulls with something or other.

MR. COUNSELLOR SMIRNOV: I see this term for the first time, myself, Mr.
President. It is _pseudocallus_. It seems to be a Latin term of some
sort of corn which is formed on the outer surface of the cerebral
substance.

THE PRESIDENT: Can you spell the word in Latin?

MR. COUNSELLOR SMIRNOV: Yes, Mr. President.

[_The prosecutor submitted a paper to the President._]

THE PRESIDENT: What you have written here is p-s-e-r-d-o. Do you mean
p-s-e-u-d-o, which means false?

MR. COUNSELLOR SMIRNOV: Yes, that is right, pseudo.

THE PRESIDENT: Now then, put your question again, and try to put it
shortly.

MR. COUNSELLOR SMIRNOV: Yes.

[Turning to the witness.] Were there many skulls with signs of so-called
_pseudocallus_ shown to the members of the commission? Will you please
give an exact explanation of this term of Professor Orsos’.

MARKOV: Professor Orsos spoke to us regarding _pseudocallus_ at a
general conference of the delegates. That took place on 30 April, in the
afternoon, in the building where the field laboratory of Dr. Butz in
Smolensk was located.

Professor Orsos described the term _pseudocallus_ as meaning some
sediment of indissoluble salt, of calcium, and other salts on the inside
of the cranium. Professor Orsos stated that, according to his
observations in Hungary, this happened if the corpses have been in the
ground for at least 3 years. When Professor Orsos stated this at the
scientific conference, none of the delegates said anything either for or
against it. I deduced from that that this term _pseudocallus_ was as
unknown to the other delegates as it was to me.

At the same conference Professor Orsos showed us such a _pseudocallus_
on one of the skulls.

MR. COUNSELLOR SMIRNOV: I should like you to answer the following
question: What number did the corpse have from which this skull with
signs of _pseudocallus_ was taken?

MARKOV: The corpse from which the skull was taken and which was noted in
the book bore the Number 526. From this I deduced that this corpse was
exhumed before our arrival at Katyn, inasmuch as all the other corpses
on which we performed autopsies on 30 April had numbers which ran above
800. It was explained to us that as soon as a corpse was exhumed it
immediately received a consecutive number.

MR. COUNSELLOR SMIRNOV: Tell me this, please. Did you notice any
_pseudocallus_ on the skulls of the corpses on which you and your
colleagues performed autopsies?

MARKOV: On the skull of the corpse on which I performed an autopsy,
there was some sort of pulpy substance in place of the brain, but I
never noticed any sign of _pseudocallus_. The other delegates—after the
explanation of Professor Orsos—likewise did not state that they had
found any _pseudocallus_ in the other skulls. Even Butz and his
co-workers, who had examined the corpses before our arrival, did not
mention any sign of _pseudocallus_.

Later on, in a book which was published by the Germans and which
contained the report of Butz, I noticed that Butz referred to
_pseudocallus_ in order to give more weight to his statement that the
corpses had been in the ground for 3 years.

MR. COUNSELLOR SMIRNOV: That is to say, that of the 11,000 corpses only
one skull was submitted to you which had _pseudocallus_?

MARKOV: That is quite correct.

MR. COUNSELLOR SMIRNOV: I should like you to describe to the Tribunal in
detail the state of the clothing which you found on the corpses.

MARKOV: In general the clothing was well preserved, but of course it was
damp due to the decomposition of the corpses. When we pulled off the
clothing to undress the corpses, or when we tried to take off the shoes,
the clothing did not tear nor did the shoes fall apart at the seams. I
even had the impression that this clothing could have been used again,
after having been cleaned.

There were some papers found in the pockets of the clothing of the
corpse on which I performed the autopsy, and these papers were also
impregnated with the dampness of the corpse. Some of the Germans who
were present when I was performing the autopsy asked me to describe
those papers and their contents; but I refused to do it, thinking that
this was not the duty of a doctor. In fact I had already noticed the
previous day that with the help of the dates contained in those papers,
they were trying to make us think that the corpses had remained in the
ground for 3 years.

Therefore, I wanted to base my deductions only on the actual condition
of the corpses. Some of the other delegates who performed autopsies also
found some papers in the clothing of the corpses. The papers which had
been found in the clothing of the corpse on which I performed the
autopsy were put into a cover which bore the same number as the corpse,
Number 827. Later on, in the book which was published by the Germans, I
perceived that some of the delegates described the contents of the
papers which were found on the corpses.

MR. COUNSELLOR SMIRNOV: I should like to ask you to reply to the
following question. On what impartial medico-judicial data did the
commission base the deduction that the corpses had remained in the earth
not less than 3 years?

THE PRESIDENT: Will you put the question again? I did not understand the
question.

MR. COUNSELLOR SMIRNOV: I asked on what impartial medico-judicial data
were the deductions of the protocol of the International Medical
Commission based, which stated that the corpses had remained in the
ground not less than 3 years?

THE PRESIDENT: Has he said that that was the deduction he made—not less
than 3 years?

THE TRIBUNAL (Mr. Biddle): He has not said that.

THE PRESIDENT: He has not said that at all. He never said that he made
the deduction that the corpses remained in the ground not less than 3
years.

MR. COUNSELLOR SMIRNOV: He did not make this deduction; but Professor
Markov, together with the other members of the commission, signed a
report of the International Commission.

THE PRESIDENT: I know; but that is why I ask you to repeat your
question. The question that was translated to us was: On what grounds
did you make your deduction that the corpses had remained, in the ground
not less than 3 years—which is the opposite of what he said.

Now will you put the question again?

MR. COUNSELLOR SMIRNOV: Very well.

[_Turning to the witness._] I am not asking you about your personal
minutes, Witness, but about the general record of the entire commission.
I am asking you on what impartial medico-judicial data were the
deductions of the entire commission based, that the corpses had remained
in the earth not less than 3 years. On the record of the deductions your
signature figures among those of the other members of the commission.

THE PRESIDENT: Wait a minute. Now, then, Colonel Smirnov, will you put
the question again.

MR. COUNSELLOR SMIRNOV: Yes, Mr. President.

[_Turning to the witness._] I was asking you on what impartial
medico-judicial data were the deductions of the commission based—not
the individual report of Dr. Markov, in which there are no
deductions—but the deductions of the entire commission, that the
corpses had remained not less than 3 years in the ground?

MARKOV: The collective protocol of the commission which was signed by
all the delegates was very scant regarding the real medico-judicial
data. Concerning the condition of the corpses, only one sentence in the
report was stated, namely that the corpses were in various stages of
decomposition, but there was no description of the real extent of
decomposition.

Thus, in my opinion, this deduction was based on the papers found on the
corpses and on testimony of the witnesses, but not on the actual
medico-judicial data. As far as medical jurisprudence is concerned, they
tried to support this deduction by the statement of Professor Orsos
regarding the finding of _pseudocallus_ in the skull of corpse Number
526.

But, according to my conviction, since this skull was the only one with
signs of _pseudocallus_, it was wrong to arrive at a definite conclusion
regarding the stage of decomposition of thousands of corpses which were
contained in the Katyn graves. Besides, the observation of Professor
Orsos regarding _pseudocallus_ was made in Hungary; that is to say,
under quite different soil and climatic conditions, and withal in
individual graves and not in mass graves, as was the case in Katyn.

MR. COUNSELLOR SMIRNOV: You spoke about the testimony of witnesses. Did
the members of the commission have the opportunity personally to
interrogate those witnesses, especially the Russian witnesses?

MARKOV: We did not have the opportunity of having any contact with the
indigenous population. On the contrary, immediately upon our arrival at
the hotel in Smolensk, Butz told us that we were in a military zone, and
that we did not have the right to walk around in the city without being
accompanied by a member of the German Army, or to speak with the
inhabitants of the place, or to make photographs. In reality, during the
time we were there, we did not have any contact with the local
inhabitants.

On the first day of our arrival in the Katyn wood, that is to say, on 29
April, in the morning, several Russian civilians were brought under
German escort to the graves. Immediately upon our arrival at Smolensk
some of the depositions of the local witnesses were submitted to us. The
depositions were typed. When these witnesses were brought to the Katyn
wood, we were told that these witnesses were the ones who gave the
testimonies which had been submitted to us. There was no regular
interrogation of the witnesses which could have been recorded, or were
recorded. Professor Orsos started the conversation with the witnesses
and told us that he could speak Russian because he had been a prisoner
of war in Russia during the first World War. He began to speak with a
man, an elderly man whose name, so far as I can remember, was Kiselov.
Then he spoke to a second witness, whose last name so far as I can
remember was Andrejev. All the conversation lasted a few minutes only.
As our Bulgarian language is rather similar to the Russian, I tried also
to speak to some of the witnesses...

THE PRESIDENT: Don’t you think that should be left to cross-examination?
Can’t these details be left to cross-examination?

MR. COUNSELLOR SMIRNOV: Yes, Mr. President.

I would ask you, Witness, to interrupt the reply to this question and to
answer the following one: At the time you signed this general report of
the commission, was it quite clear to you that the murders were
perpetrated in Katyn not earlier than the last quarter of 1941, and that
1940, in any case, was excluded?

MARKOV: Yes, this was absolutely clear to me and that is why I did not
make any deductions in the minutes which I made on my findings in the
Katyn wood.

MR. COUNSELLOR SMIRNOV: Why did you sign then this general report, which
was incorrect in your opinion?

MARKOV: In order to make it quite clear under what conditions I signed
this report, I should like to say a few words on how it was made up and
how it was signed.

MR. COUNSELLOR SMIRNOV: Excuse me, I would like to put a question to you
which defines more accurately this matter. Was this report actually
signed on 30 April 1941 in the town of Smolensk or was it signed on
another date and at another place?

MARKOV: It was not signed in Smolensk on 30 April but was signed on 1
May at noon, at the airport which was called Bela.

MR. COUNSELLOR SMIRNOV: Will you please tell the Tribunal under what
conditions it was signed.

MARKOV: The compilation of this record was to be done at the same
conference which I already mentioned and which took place in the
laboratory of Butz in the afternoon of 30 April. Present at this
conference were all the delegates and all the Germans who had arrived
with us from Berlin: Butz and his assistants, General Staff Physician
Holm, the chief physician of the Smolensk sector, and also other German
Army officials who were unknown to me. Butz stated that the Germans were
only present as hosts, but actually the conference was presided over by
General Staff Physician Holm and the work was performed under the
direction of Butz. The secretary of the conference was the personal lady
secretary of Butz who took down the report. However, I never saw these
minutes. Butz and Orsos came with a prepared draft to this conference, a
sort of protocol; but I never learned who ordered them to draw up such a
protocol. This protocol was read by Butz and then a question was raised
regarding the state and the age of the young pines which were in the
clearings of the Katyn wood. Butz was of the opinion that in these
clearings there were graves too.

MR. COUNSELLOR SMIRNOV: Excuse me for interrupting you. Did you have any
evidence that any graves were actually found in these clearings?

MARKOV: No. During the time we were there, no new graves were opened. As
some of the delegates said they were not competent to express their
opinion regarding the age of these trees, General Holm gave an order to
bring a German who was an expert on forestry. He showed us the cut of
the trunk of a small tree and from the number of circles in this trunk,
he deduced the trees were 5 years old.

MR. COUNSELLOR SMIRNOV: Excuse me; I interrupt you again. You,
yourself—can you state here that this tree was actually cut down from
the grave and not from any other place in the clearing?

MARKOV: I can say only that in the Katyn wood there were some clearings
with small trees and that, while driving back to Smolensk, we took a
little tree with us in the bus, but I do not know whether there were any
graves where these trees were standing. As I have already stated, no
graves were laid open in our presence.

MR. COUNSELLOR SMIRNOV: I would request you to continue your reply, but
very briefly and not to detain the attention of the Tribunal with
unnecessary details.

MARKOV: Some editorial notes were made in connection with this protocol,
but I do not remember what they were. Then Orsos and Butz were entrusted
with the final drafting of the record. The signing of the record was
intended to take place on the same night at a banquet which was
organized in a German Army hospital. At this banquet Butz arrived with
the minutes and he started reading them, but the actual signing did not
take place for reasons which are still not clear to me. It was stated
that this record would have to be rewritten, so the banquet lasted until
3 or 4 o’clock in the morning. Then Professor Palmieri told me that the
Germans were not pleased with the contents of the protocol and that they
were carrying on telephone conversations with Berlin and that perhaps
there would not even be a protocol at all.

Indeed, having spent the night in Smolensk without having signed the
record, we took off from Smolensk on the morning of 1 May. I personally
had the impression that no protocol at all would be issued and I was
very pleased about that. On the way to Smolensk, as well as on our way
back, some of the delegates asked to stop in Warsaw in order to see the
city, but we were told that it was impossible because of military
reasons.

MR. COUNSELLOR SMIRNOV: This has nothing to do with the subject. Please
keep to the facts.

MARKOV: Around noon we arrived at the airport which was called Bela. The
airport was apparently a military airfield because of the temporary
military barracks I saw there. We had dinner there and immediately after
dinner, notwithstanding the fact that we were not told that the signing
of the minutes would take place on the way to Berlin, we were submitted
copies of the protocol for signature. During the signing a number of
military persons were present, as there were no other people except
military personnel on this airfield. I was rather struck by the fact
that on the one hand the records were already completed in Smolensk but
were not submitted to us for signing there, and on the other hand that
they did not wait till we arrived in Berlin a few hours later. They were
submitted to us for signing at this isolated military airfield. This was
the reason why I signed the report, in spite of the conviction I had
acquired during the autopsy which I had performed at Smolensk.

MR. COUNSELLOR SMIRNOV: That is to say, the date and the locality which
are shown in the protocol are incorrect?

MARKOV: Yes, that is so.

MR. COUNSELLOR SMIRNOV: And you signed it because you felt yourself
compelled to?

THE PRESIDENT: Colonel Smirnov, I don’t think it is proper for you to
put leading questions to him. He has stated the fact. It is useless to
go on stating conclusions about it.

MR. COUNSELLOR SMIRNOV: Very well, Mr. President. I have no further
questions to put to the witness.

THE PRESIDENT: Does anyone want to cross-examine him?

DR. STAHMER: Mr. President, I should like to ask a question concerning
the legal proceedings first. Each side was to call three witnesses
before the Court. This witness, as I understand it, has not only
testified to facts but has also made statements which can be called an
expert judgment. He has not only expressed himself as an expert witness,
as we say in German law, but also as an expert. If the Court is to
listen to these statements made by the witness as an expert, I should
like to have the opportunity for the Defense also to call in an expert.

THE PRESIDENT: No, Dr. Stahmer, the Tribunal will not hear more than
three witnesses on either side. You could have called any expert you
wanted or any member of the experts who made the German examination. It
was your privilege to call any of them.

DR. STAHMER: Witness, how long have you been active in the field of
medical jurisprudence?

MARKOV: I have been working in the field of medical jurisprudence since
the beginning of 1927 in the faculty for medical jurisprudence of the
University in Sofia, first as an assistant and now I am professor of
medical jurisprudence. I am not a staff professor at the university. My
position can be designated by the German word “Ausserordentlicher
Professor” (university lecturer).

DR. STAHMER: Before your visit to Katyn did your government tell you
that you were to participate in a political action without consideration
of your scientific qualification?

MARKOV: I was not told so literally, but in the press the Katyn question
was discussed as a political subject.

DR. STAHMER: Did you feel free in regard to your scientific “conscience”
at that time?

MARKOV: At what time?

DR. STAHMER: At the time when you went to Katyn?

MARKOV: The question is not quite clear to me; I should like you to
explain it.

DR. STAHMER: Did you consider the task you had to carry out there a
political one or a scientific one?

MARKOV: I understood this task from the very first moment as a political
one and therefore I tried to evade it.

DR. STAHMER: Did you realize the outstanding political importance of
this task?

MARKOV: Yes; from everything I read in the press.

DR. STAHMER: In your examination yesterday you said that when you
arrived at Katyn the graves had already been opened and certain corpses
had been carefully laid out. Do you mean to say that these corpses were
not taken from the graves at all?

MARKOV: No, I should not say that, inasmuch as it was obvious that
corpses were taken out of these graves and besides I saw that some
corpses were still in the graves.

DR. STAHMER: Then, in order to state this positively, you had no reason
to think that the corpses inspected by the commission were not taken
from these mass graves?

THE PRESIDENT: He did not know where they came from, did he?

MARKOV: Evidently from the graves which were open.

DR. STAHMER: You have already made statements to the effect that, as a
result of the medico-judicial examination by this International
Commission, a protocol, a record was taken down. You have furthermore
stated that you signed this protocol.

Mr. President, this protocol is contained in its full text in the
official data published by the German Government on this incident. I ask
that this evidence, this so-called _White Book_, be admitted as
evidence. I will submit it to the Court later.

THE PRESIDENT: We will adjourn now.

                        [_A recess was taken._]

THE PRESIDENT: Dr. Stahmer, the Tribunal rules that you may
cross-examine this witness upon the report, and the protocol will be
admitted in evidence, if you offer it in evidence, under Article 19 of
the Charter. That, of course, involves that we do not take judicial
notice of the report under Article 21 of the Charter but that it is
offered under Article 19 of the Charter and therefore it will either
come through the earphones in cross-examination or such parts of the
protocol as you wish to have translated.

DR. STAHMER: Witness, was the protocol or the record signed by you and
the other experts compiled in the same way in which it is included in
the German _White Book_?

MARKOV: Yes, the record of the protocol which is included in the German
_White Book_ is the same protocol which I compiled. A long time after my
return to Sofia I was sent two copies of the protocol by Director Dietz.
These two copies were typewritten, and I was requested to make necessary
corrections and additions if I deemed it necessary, but I left it
without corrections and it was printed without any comments on my part.

MR. COUNSELLOR SMIRNOV: Just a moment Dr. Stahmer...

Mr. President, I believe that there is a slight confusion here. The
witness is answering in regard to the individual protocol, whereas Dr.
Stahmer is questioning him on the general record. Thus the witness does
not answer the proper question.

DR. STAHMER: Mr. President, I would have cleared this matter up on my
own account.

[_Turning to the witness._] Do you mean your autopsy protocol?

MARKOV: I mean the protocol I compiled myself and not the general
record.

DR. STAHMER: Now, what about this general protocol or record? When did
you receive a copy of it?

MARKOV: I received a copy of the general record in Berlin where as many
copies were signed as there were delegates present.

DR. STAHMER: Just a little while ago you stated that Russian witnesses
had been taken before the commission in the wood of Katyn, but that,
however, there had been no opportunity afforded the experts to talk with
these witnesses concerning the question at hand.

Now, in this protocol, in this record, the following remark is found,
and I quote:

    “The commission interrogated several indigenous Russian
    witnesses personally. Among other things, these witnesses
    confirmed that in the months of March and April 1940 large
    shipments of Polish officers arrived almost daily at the
    railroad station Gnjesdova near Katyn. These trains were
    emptied, the inmates were taken in lorries to the wood of Katyn
    and never seen again. Furthermore, official notice was taken of
    the proofs and statements, and the documents containing the
    evidence were inspected.”

MARKOV: As I already stated during the questioning, two witnesses were
interrogated on the spot by Orsos. They actually said that they saw how
Polish officers were brought to the station of Gnjesdova and that later
they did not see them again.

THE PRESIDENT: Dr. Stahmer, the Tribunal thinks the witness ought to be
given an opportunity of seeing the report when you put passages in it to
him.

DR. STAHMER: Yes.

THE PRESIDENT: Haven’t you got another copy of it?

DR. STAHMER: I am sorry, Mr. President, I have no second copy; no.

THE PRESIDENT: Can the witness read German?

MARKOV: No, but anyhow I can understand the contents of the record.

THE PRESIDENT: You mean you can read it?

MARKOV: Yes, I can also read it.

THE PRESIDENT: Can the witness read German, do you mean?

MARKOV: Yes, I can read German.

DR. STAHMER: Mr. President, may I make a suggestion?

THE PRESIDENT: Dr. Stahmer, if you have only got one copy, I think you
had better have it back. You can’t have the book passing to and fro like
that.

DR. STAHMER: I should like to make the suggestion that the
cross-examination be interrupted and the other witness be called, and I
will have this material typed in the meantime. That would be a solution.
But there are only a few sentences...

THE PRESIDENT: You can read it. Take the book back.

DR. STAHMER: Mr. President, I propose to read only a few short
sentences.

[_Turning to the witness._] Yesterday you testified, Witness, that the
experts restricted or limited themselves to making an autopsy on one
corpse only. In this report the following is set down—I quote:

    “The members of the commission personally performed an autopsy
    on nine corpses and numerous selected cases were submitted for
    post-mortem examination.”

Is that right?

MARKOV: That is right. Those of the members of the commission who were
medical experts, with the exception of Professor Naville, performed each
an autopsy on a corpse. Hajek made two autopsies.

DR. STAHMER: In this instance we are not interested in the autopsy, but
in the post-mortem examination.

MARKOV: The corpses were examined but only superficially during an
inspection which we carried out very hastily on the first day. No
individual autopsy was carried out, but the corpses were merely looked
at as they lay side by side.

DR. STAHMER: I should like to ask you now what is meant in medical
science by the concept “post-mortem examination.”

MARKOV: We differentiate between an exterior inspection, when the corpse
has to be undressed and minutely examined externally, and an internal
inspection, when the inner organs of the corpse are examined. This was
not done with the hundreds of bodies at Katyn, as it was not physically
possible. We were there only one forenoon. Therefore, I consider that
there was no actual medico-judicial expert examination of these corpses
in the real sense of the word.

DR. STAHMER: A little while ago you talked about the trees that were
growing there on these graves, and you said that an expert explained the
age of the trees by the rings counted on a trunk. In the protocol and
the report the following is set down. I quote:

    “According to the opinion of the members of the commission and
    the testimony of forest ranger Von Herff, who was called in as
    an expert on forestry, they were small pine trees of at least 5
    years of age, badly developed because they had been standing in
    the shade of large trees and had been transplanted to this spot
    about 3 years ago.”

Now, I would like to ask you, is it correct that you undertook a local
inspection and that you convinced yourself on the spot whether the
statements made by the forestry expert were actually correct?

MARKOV: Our personal impression and my personal conviction in this
question only refer to the fact that in the wood of Katyn there were
clearings where small trees were growing and that the afore-mentioned
expert showed us a cross section of a tree with its circles. But I do
not consider myself competent and cannot give an opinion as to whether
the deductions which are set forth in the record are correct or not.
Precisely for that reason it was judged necessary to call in a forestry
expert, for we doctors were not competent to decide this question.
Therefore, these conclusions are merely the conclusions of a competent
German expert.

DR. STAHMER: But after having had a first-hand view, did you doubt the
truth of these statements?

MARKOV: After the German expert had expressed his opinion at the
conference of the delegates, neither I nor the other delegates expressed
any opinion as to whether his conclusions were correct or not. These
conclusions are set down in the record in the form in which the expert
expressed himself.

DR. STAHMER: According to your autopsy report the corpse of the Polish
officer which you dissected was clothed and you described the clothing
in detail. Was this winter or summer clothing that you found?

MARKOV: It was winter clothing including an overcoat and a woolen shawl
around the neck.

DR. STAHMER: In the protocol it says further and I quote:

    “Furthermore, Polish cigarettes and matchboxes were found with
    the dead; in some cases tobacco containers and cigarette
    holders, and ‘Kosielsk’ was inscribed thereon.”

The question is, did you see these objects?

MARKOV: We actually saw these tobacco boxes with the name “Kosielsk”
engraved thereon. They were exhibited to us in the glass case which was
shown to us in the peasant hut not far from the Katyn wood. I remember
them because Butz drew our attention to them.

DR. STAHMER: In your autopsy report, Witness, there is the following
remark, and I quote:

    “In the clothing documents were found and they were put in the
    folder Number 827.”

Now, I should like to ask you: How did you discover these documents? Did
you personally take them out of the pockets?

MARKOV: These papers were in the pockets of the overcoat and of the
jacket. As far as I can remember they were taken out by a German who was
undressing the corpse in my presence.

DR. STAHMER: At that time were the documents already in the envelope?

MARKOV: They were not yet in the envelope, but after they had been taken
out of the pockets they were put into an envelope which bore the number
of the corpse. We were told that this was the usual method of procedure.

DR. STAHMER: What was the nature of the documents?

MARKOV: I did not examine them at all, as I have already said, and I
refused to do so, but according to the size, I believe that they were
certificates of identity. I could distinguish individual letters, but I
do not know whether one could read the inscription, for I did not
attempt to do so.

DR. STAHMER: In the protocol the following statement is made, and I
quote:

    “The documents found with the corpses (diaries, letters, and
    newspapers) were dated from the fall of 1939 until March and
    April 1940. The latest date which could be ascertained was the
    date of a Russian newspaper of 22 April 1940.”

Now, I should like to ask you if this statement is correct and whether
it is in accordance with the findings that you made?

MARKOV: Such letters and newspapers were indeed in the glass cases and
were shown to us. Some such papers were found by members of the
commission who were dissecting the bodies, and if I remember rightly,
they described the contents of these documents, but I did not do so.

DR. STAHMER: In your examination just a little while ago you stated that
only a few scientific details were contained in this protocol and that
this was probably done intentionally. I should like to quote from this
record as follows:

    “Various degrees and types of decomposition were caused by the
    position of the bodies to one another in the grave. Aside from
    some mummification on the surface and around the edges of the
    mass of corpses, some damp maceration was found among the center
    corpses. The sticking together of the adjacent corpses and the
    soldering together of corpses through cadaverous acids and
    fluids which had thickened, and particularly the deformations
    that obtained from the pressure among the corpses, show that the
    corpses were buried there right from the beginning.

    “Among the corpses, insects or remains of insects which might
    date back to the time of burial are entirely lacking, and from
    this it may be gathered that the shooting and the burial took
    place at a season which was cold and free from insects.”

Now, I should like to ask you if these statements are correct and if
they are in line with your findings.

MARKOV: I stated that little was said on the condition of the corpses,
and indeed as can be judged by the quotation which I had in mind, only a
general phraseology is used concerning the various degrees of
decomposition of the corpses, but no concrete or detailed description of
the condition of the corpses is made.

As to the insects and their larvae, the assertion of the general report
that none were discovered is in flagrant contradiction to the
conclusions of Professor Palmieri, which are recorded in his personal
minutes concerning the corpse which he himself dissected. In this
protocol, which is published in the same German White Book, it is said
that there were traces of remains of insects and their larvae in the
mouths of the corpses.

DR. STAHMER: Just a little while ago you spoke of the scientific
examination of skulls undertaken by Professor Orsos. The record also
refers to this matter, and I quote:

    “A large number of skulls were examined with respect to the
    changes they had undergone, which, according to the background
    and experience of Professor Orsos, would be of great value in
    fixing the date of death. In this connection, we are concerned
    with stratified encrustations on the surface of the mush found
    in the skull as a residue of the brain. These symptoms are not
    to be found among corpses which have been in their graves for
    less than 3 years. Such a condition, among other things, was
    found in a very decided form in the skull of corpse Number 526,
    which was found near the surface of a large mass grave.”

I should like to ask you now if it is correct that, according to the
report of Professor Orsos, such a condition was discovered not only as
is said here on the skull of one corpse, but among other corpses also.

MARKOV: I can answer this question quite categorically. We were shown
only one skull, the one precisely mentioned in the record under the
Number 526. I do not know that other skulls were examined, as the record
seems to imply. I am of the opinion that Professor Orsos had no
possibility of examining many corpses in the Katyn wood, for he came
with us and left with us. That means he stayed in the Katyn wood just as
long as I and all the other members of the commission did.

DR. STAHMER: Finally, I should like to quote the conclusion of the
summarizing expert opinion, in which it is stated:

    “From statements made by witnesses, from the letters and
    correspondence, diaries, newspapers, and so forth, found on the
    corpses, it may be seen that the shootings took place in the
    months of March and April 1940. The following are in complete
    agreement with the findings made with regard to the mass graves
    and the individual corpses of the Polish officers, as described
    in the report.”

Is this statement actually correct?

THE PRESIDENT: I did not quite understand the statement. As I heard you
read it, it was something like this: From the statements of witnesses,
letters, and so forth ...

DR. STAHMER: “...in complete agreement with the findings made with
regard to the mass graves and the individual corpses of the Polish
officers and described in the report.” That is the end of the quotation.

THE PRESIDENT: It doesn’t say that the following persons are in complete
agreement, but that the following facts are in complete agreement. Is
that right?

DR. STAHMER: No. My question is: “Is this statement approved by you? Do
you agree with it?”

THE PRESIDENT: Yes, I know, but you read out certain words, which were
these: “The following are in complete agreement.” What I want to know is
whether that means that the following persons are in complete agreement,
or whether the following facts are in complete agreement.

DR. STAHMER: Special facts had been set down, and this is a summarizing
expert opinion signed by all the members of the commission. Therefore,
we have here a scientific explanation of the real facts.

THE PRESIDENT: Would you just listen to what I read out from what I took
down? “From the statements of witnesses, letters, and other documents,
it may be seen that the shooting took place in the months of March and
April 1940. The following are in complete agreement.” What I am asking
you is this—

[_Dr. Stahmer attempted to interrupt._]

Just a moment, Dr. Stahmer, listen to what I say. What I am asking you
is: Does the statement mean that the following persons are in complete
agreement, or that the following facts are in complete agreement?

DR. STAHMER: No, no. The following people testify that this fact, the
fact that the shootings took place in the months of March and April
1940, agrees with the results of their investigations of the mass graves
and of individual corpses. That is what is meant and that is the
conclusion. What has been found here is in agreement with that which has
been set down and determined scientifically. That is the meaning.

THE PRESIDENT: Go on.

DR. STAHMER: Is this final deduction in accord with your scientific
conviction?

MARKOV: I have already indicated that this statement regarding the
condition of the corpses is based on the date resulting from testimony
by the witnesses and from the available documents, but it is in
contradiction to the observations I made on the corpse which I
dissected. That means I did not consider that the results of the
autopsies corroborated the presumable date of death to be taken from the
testimony or the documents. If I had been convinced that the condition
of the corpses did indeed correspond to the date of decease mentioned by
the Germans, I would have given such a statement in my individual
protocol.

When I saw the signed protocol I became suspicious as to the last
sentence of the record—the sentence which precedes the signatures. I
always had doubts whether this sentence was contained in that draft of
the protocol which we saw at the conference in Smolensk.

As far as I could understand, the draft of the protocol which had been
elaborated in Smolensk only stated that we actually were shown papers
and that we heard witnesses; and this was supposed to prove that the
killings were carried out in March or April of 1940.

I was of the opinion that the fact that the conclusion was not based on
medical opinion and not supported absolutely by medical reports and
examination, was the reason why the signing of the protocol was
postponed and why the record was not signed in Smolensk.

DR. STAHMER: Witness, at the beginning of my examination you stated that
you were fully aware of the political significance of your task. Why,
then, did you desist from protesting against this report which was not
in accord with your scientific conviction?

MARKOV: I have already said that I signed the protocol as I was
convinced that the circumstances at this isolated military airfield
offered no other possibility, and therefore I could not make any
objections.

DR. STAHMER: Why did you not take steps later on?

MARKOV: My conduct after the signing of the protocol corresponds fully
to what I am stating here, I repeat. I was not convinced of the truth of
the German version. I was invited many times to Berlin by Director
Dietz. I was also invited to Sofia by the German Embassy. And in
Bulgaria, the Bulgarian Foreign Office also invited me to make a public
statement over the radio and to the press; and I was requested to say
what conclusions we had come to during our investigation. However, I did
not do so, and I always refused to do so. Because of the political
situation in which we found ourselves at that moment, I could not make a
public statement declaring the German version was wrong.

Concerning that matter there were quite sharp words exchanged between me
and the German Embassy in Sofia. And when, a few months later, another
Bulgarian representative was asked to be sent as a member of a similar
commission for the investigation of the corpses in Vinnitza in the
Ukraine, the German Ambassador Beckerly stated quite openly to the
Bulgarian Foreign Office that the Germans did not wish me to be sent to
Vinnitza.

That indicated that the Germans very well understood my behavior and my
opinion on that matter. Concerning this question, Minister
Plenipotentiary Saratov, of our Foreign Office, still has shorthand
records about conversations which, if the Honored Tribunal considers it
necessary, can be sent here from Bulgaria.

Therefore, all my refusals, after I had signed the protocol, to carry on
any activity for the purpose of propaganda, fully correspond to what I
said here, namely that the conclusions laid down in the collective
protocol do not answer my personal conviction. And I will repeat that if
I had been convinced that the corpses were buried for 3 years, I would
have testified this after having dissected a corpse. But I have left my
personal protocol incomplete and this is a quite unusual thing in the
case of medico-judicial examination.

DR. STAHMER: The protocol was not signed by you alone, but on the
contrary it carries the signatures of 11 representatives of science,
whose names you gave yesterday, some of them of world renown. Among
these men we find a scientist of a neutral country, Professor Naville.

Did you take the opportunity to get in touch with one of these experts
in the meantime with a view of reaching a rectification of the report?

MARKOV: I cannot say on what considerations the other delegates signed
the protocol. But they also signed it under the same circumstances as I
did. However, when I read the individual protocols, I notice that they
also refrained from stating the precise date of the killing of the man
whose corpse they had dissected. There was one exception only, as I have
already said. That was Professor Miloslavich, who was the only one who
asserted that the corpse which he had dissected was that of a man buried
for at least 3 years. After the signing of the protocol, I did not have
any contact with any of the persons who had signed the collective
protocol.

DR. STAHMER: Witness, you gave two versions, one in the protocol which
we have just discussed, and another here before the Court. Which version
is the correct one?

MARKOV: I do not understand which two versions you are speaking about.
Will you please explain it?

DR. STAHMER: In the first version, in the protocol, it is set forth that
according to the conclusion which had been made, the shooting must have
taken place 3 years ago. Today you testified that the findings were not
correct, and between the shooting and the time of your investigations
there could only be a space of perhaps 18 months.

MARKOV: I stated that the conclusions of the collective protocol do not
correspond with my personal conviction.

DR. STAHMER: “Did not correspond” or “do not correspond with your
conviction”?

MARKOV: It did not and it does not correspond with my opinion then and
now.

DR. STAHMER: I have no further questions.

MR. COUNSELLOR SMIRNOV: Mr. President, I have no further questions to
put to this witness.

THE PRESIDENT: Witness, were any of the bodies which were examined by
the members of this delegation exhumed from the ground in your presence?

MARKOV: The corpses which we dissected were selected among the top
layers of the graves which had been already exhumed. They were taken out
of the graves and given to us for dissection.

THE PRESIDENT: Was there anything to indicate, in your opinion, that the
corpses had not been buried in those graves?

MARKOV: As far as traces are concerned, and as far as the layers of
corpses were preserved, they were stuck to each other; so that if they
had been transferred, I do not believe that this could have been done
recently. This could not have been done immediately before our arrival.

THE PRESIDENT: You mean that you think the corpses had been buried in
those graves?

MARKOV: I cannot say whether they were put into those graves immediately
after death had come, as I have no data to confirm this, but they did
not look as if they had just been put there.

THE PRESIDENT: Is it possible, in your opinion as an expert, to fix the
date of March or April or such a short period as that, 3 years before
the examination which you have made?

MARKOV: I believe that if one relies exclusively on medical data, that
is to say, on the state and condition of the corpses, it is impossible,
when it is a question of years, to determine the date with such
precision and say accurately whether they were killed in March or in
April. Therefore, apparently the months of March and April were not
based on the medical data, for that would be impossible, but on the
testimony of the witnesses and on the documents which were shown us.

THE PRESIDENT: When you got back to Sofia, you said that the protocol
was sent to you for your observations and for your corrections and that
you made none. Why was that?

MARKOV: We are concerned with the individual protocol which I compiled.
I did not supplement it by making any conclusion, I did not add any
conclusion because it was sent to me by the Germans and because in
general at that time the political situation in our country was such
that I could not declare publicly that the German version was not a true
one.

THE PRESIDENT: Do you mean that your personal protocol alone was sent to
you at Sofia?

MARKOV: Yes, only my personal protocol was sent to Sofia. As to the
collective protocol, I brought that back myself to Sofia and handed it
over to our Foreign Minister.

THE PRESIDENT: Is your personal protocol, in the words that you drew it
up, incorporated in the whole protocol and signed by all the delegates?

MARKOV: In my personal protocol there is only a description of the
corpse and of the clothing of the corpse which I dissected.

THE PRESIDENT: That is not the question I asked.

MARKOV: In the general protocol a rough description only is made,
concerning the clothing and the degree of decomposition.

THE PRESIDENT: Well, do you mean that your personal protocol...

MARKOV: I consider that the personal protocols are more accurate
regarding the condition of the corpses, because they were compiled
during the dissection and were dictated on the spot to the
stenographers.

THE PRESIDENT: Just listen to the question, please. Is your personal
protocol, in the words in which you drew it up, incorporated in the
collective protocol in the same words?

MARKOV: My own protocol is not included in the general record, but it is
included in the _White Book_ which the Germans published together with
the general record.

THE PRESIDENT: It is there, then, in the report, is it? It is in the
_White Book_?

MARKOV: Yes, quite right. It is included in this book.

THE PRESIDENT: The witness can retire. Yes, Colonel Smirnov, do you have
another witness?

MR. COUNSELLOR SMIRNOV: Yes, Mr. President. I beg you to allow me to
call as a witness, Professor of Medical Jurisprudence Prosorovski.

[_The witness Prosorovski took the stand._]

THE PRESIDENT: Will you state your full name, please.

VICTOR IL’ICH PROSOROVSKI (Witness): Prosorovski, Victor Il’ich.

THE PRESIDENT: Will you repeat this oath after me:

I, citizen of the U.S.S.R.—called as a witness in this case—solemnly
promise and swear before the High Tribunal—to say all that I know about
this case—and to add and withhold nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

MR. COUNSELLOR SMIRNOV: Witness, just before questioning you, I beg you
to adhere to the following order. After my question, please pause in
order to allow the interpreters to make the translation, and speak as
slowly as possible.

Will you give the Tribunal very briefly some information about your
scientific activity, and your past work as a medico-judicial doctor.

PROSOROVSKI: I am a doctor by profession; professor of medical
jurisprudence and a doctor of medical science. I am the Chief Medical
Expert of the Ministry of Public Health of the Soviet Union. I am the
Director of the Scientific Research Institute for Medical Jurisprudence
at the Ministry of Public Health of the U.S.S.R.; my business is mainly
of a scientific nature; I am President of the Medico-Judicial Commission
of the Scientific Medical Council of the Ministry of Public Health of
the U.S.S.R.

MR. COUNSELLOR SMIRNOV: How long did you practice as a medico-judicial
expert?

PROSOROVSKI: I practiced for 17 years in that sphere.

MR. COUNSELLOR SMIRNOV: What kind of participation was yours in the
investigation of the mass crimes of the Hitlerites against the Polish
officers in Katyn?

PROSOROVSKI: The President of the Special Commission for investigation
and ascertaining of the circumstances of the shootings by the German
Fascist aggressors of Polish officers, Academician Nicolai Ilych
Burdenko, offered me in the beginning of January 1944 the chairmanship
of the Medico-Judicial Commission of experts. Apart from this
organizational activity, I participated personally in the exhumations
and examination of these corpses.

THE PRESIDENT: Colonel Smirnov, perhaps that would be a good time to
break off.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

THE MARSHAL: May it please the Tribunal, the Defendants Hess, Fritzsche,
and Von Ribbentrop are absent.

MR. COUNSELLOR SMIRNOV: May I continue the examination of this witness,
Mr. President?

THE PRESIDENT: Yes.

MR. COUNSELLOR SMIRNOV: Please tell me, how far from the town of
Smolensk were the burial grounds where the corpses were discovered?

PROSOROVSKI: A commission of medico-legal experts, together with members
of the special commission, Academician Burdenko, Academician Potemkin,
Academician Tolstoy, and other members of this commission, betook
themselves on 14 January 1944 to the burial grounds of the Polish
officers in the so-called Katyn wood. This spot is located about 15
kilometers from the town of Smolensk. These burial grounds were situated
on a slope at a distance of about 200 meters from the Vitebsk high road.
One of these graves was about 60 meters long and 60 meters wide; the
other one, situated a small distance from this first grave, was about 7
meters long and 6 meters wide.

MR. COUNSELLOR SMIRNOV: How many corpses were exhumed by the commission
you headed?

PROSOROVSKI: In the Katyn wood the commission of medical experts exhumed
and examined, from various graves and from various depths, altogether
925 corpses.

MR. COUNSELLOR SMIRNOV: How was the work of exhumation done and how many
assistants were employed by you on this work?

PROSOROVSKI: Specialists and medico-legal experts participated in the
work of this commission. In September and October 1943 they had exhumed
and examined the corpses of the victims shot by the Germans...

MR. COUNSELLOR SMIRNOV: Where was the examination of the corpses
performed?

PROSOROVSKI: They examined them in the town and the neighborhood of
Smolensk. Among the members of this commission were Professor
Prosorovski; Professor Smolianinov; the eldest and most learned
collaborator of the Medico-Legal Research Institute, Dr. Semenovski;
Professor of Pathological Anatomy Voropaev; Professor of Legal Chemistry
Schwaikova, who was invited for consultations on chemico-legal subjects.
To assist this commission, they called also medico-legal experts from
the forces. Among them were the medical student Nikolski, Dr.
Soubbotin...

MR. COUNSELLOR SMIRNOV: I doubt whether the Tribunal is interested in
all these names. I ask you to answer the following question: What method
of examination was chosen by you? What I mean is, did you strip the
corpses of their clothes and were you satisfied with the customary post
mortem examination or was every single one of these 925 corpses
thoroughly examined?

PROSOROVSKI: After exhumation of the corpses, they were thoroughly
searched, particularly their clothing. Then an exterior examination was
carried out and then they were subjected to a complete medico-legal
dissection of all three parts of the body; that is to say, the skull,
the chest, and the abdomen, as well as all the inner organs of these
corpses.

MR. COUNSELLOR SMIRNOV: Please tell me whether the corpses exhumed from
these burial grounds bore traces of a previous medical examination?

PROSOROVSKI: Out of the 925 corpses which we examined, only three had
already been dissected; and that was a partial examination of the skulls
only. On all the others no traces of previous medical examination could
be ascertained. They were clothed; and the jackets, trousers, and shirts
were buttoned, the belts were strapped, and the knots of ties had not
been undone. Neither on the head nor on the body were there any traces
of cuts or other traces of medico-legal examination. Therefore this
excludes the possibility of their having been subjected to any previous
medico-legal examination.

MR. COUNSELLOR SMIRNOV: During the medico-legal examination which was
carried out by your commission, did you open the skulls?

PROSOROVSKI: Of course. At the examination of quite a number of corpses
the skull was opened and the contents of the skull were examined.

MR. COUNSELLOR SMIRNOV: Are you acquainted with the expression
“pseudocallus?”

PROSOROVSKI: I heard of it when I received a book in 1945 in the
Institute of Medico-Legal Science. Before that not a single medical
legal expert observed any similar phenomena in the Soviet Union.

MR. COUNSELLOR SMIRNOV: Among the 925 skulls which you examined, were
there many cases of _pseudocallus_?

PROSOROVSKI: Not one of the medico-legal experts who were examining
these 925 corpses observed lime deposits on the inner side of the
cranium or on any other part of the skull.

MR. COUNSELLOR SMIRNOV: Therefore, there was no sign of _pseudocallus_
on any of the skulls.

PROSOROVSKI: No.

MR. COUNSELLOR SMIRNOV: Was the clothing also examined?

PROSOROVSKI: As already stated, the clothing was thoroughly examined.
Upon the request of the Special Commission, and in the presence of its
members and of the Metropolitan Nikolai, Academician Burdenko, and
others, the medico-legal experts examined the clothing, the pockets of
the trousers, of the coats, and of the overcoats. As a rule, the pockets
were either turned, torn open, or cut open, and this testified to the
fact that they had already been searched. The clothing itself, the
overcoats, the jackets, and the trousers as well as the shirts, were
moist with corpse liquids. This clothing could not be torn asunder, in
spite of violent effort.

MR. COUNSELLOR SMIRNOV: Therefore, the tissue of the clothing was solid?

PROSOROVSKI: Yes, the tissue was very solid, and of course, it was
besmeared with earth.

MR. COUNSELLOR SMIRNOV: During the examination, did you look into the
pockets of the clothing and did you find any documents in them?

PROSOROVSKI: As I said, most of the pockets were turned out or cut; but
some of them remained intact. In these pockets, and also under the
lining of the overcoats and of the trousers we discovered, for instance,
notes, pamphlets, papers, closed and open letters and postcards,
cigarette paper, cigarette holders, pipes, and so forth, and even
valuables were found, such as ingots of gold and gold coins.

MR. COUNSELLOR SMIRNOV: These details are not very relevant, and
therefore I beg you to refrain from giving them. I would like you to
answer the following question: Did you discover in the clothing
documents dated the end of 1940 and also dated 1941?

PROSOROVSKI: Yes. I discovered such documents, and my colleagues also
found some. Professor Smolianinov, for instance, discovered on one of
the corpses a letter written in Russian, and it was sent by Sophie
Zigon, addressed to the Red Cross in Moscow, with the request to
communicate to her the address of her husband, Thomas Zigon. The date of
this letter was 12 September 1940. Besides the envelope bore the stamp
of a post office in Warsaw of September 1940, and also the stamp of the
Moscow post office, dated 28 September 1940.

Another document of the same sort was discovered. It was a postcard sent
from Tarnopol, with the post office cancellation: “Tarnopol, 12
September 1940.”

Then we discovered receipts with dates, one in particular with the
name—if I am not mistaken—of Orashkevitch, certifying to the receipt
of money with the date of 6 April 1941, and another receipt in his name,
also referring to a money deposit, was dated 5 May 1941.

Then, I myself discovered a letter with the date 20 June 1941, with the
name of Irene Tutchinski, as well as other documents of the same sort.

MR. COUNSELLOR SMIRNOV: During the medico-legal examination of the
corpses, were any bullets or cartridge cases discovered? Please tell us
what was the mark on these cartridge cases? Were they of Soviet make or
of foreign make; and if they were foreign make, which one, and what was
the caliber?

PROSOROVSKI: The cause of death of the Polish officers was bullet wounds
in the nape of the neck. In the tissue of the brain or in the bone of
the skull we discovered bullets which were more or less deformed. As to
cartridge cases, we did indeed discover, during the exhumation,
cartridge cases of German origin, for on their bases we found the mark
G-e-c-o, Geco.

MR. COUNSELLOR SMIRNOV: One minute, Witness.

I will now read an original German document and I beg the permission of
the Tribunal to submit a series of documents which have been offered us
by our American colleagues, Document Number 402-PS, Exhibit USSR-507. It
concerns German correspondence and telegrams on Katyn, and these
telegrams are sent by an official of the Government General, Heinrich,
to the Government of the Government General.

I submit the original document to the Court. I am only going to read one
document, a very short one, in connection with the cartridge cases
discovered in the mass graves. The telegram is addressed to the
Government of the Government General, care of First Administrative
Counsellor Weirauch in Kraków. It is marked:

    “Urgent, to be delivered at once, secret.

    “Part of the Polish Red Cross returned yesterday from Katyn. The
    employees of the Polish Red Cross have brought with them the
    cartridge cases which were used in shooting the victims of
    Katyn. It appears that these are German munitions. The caliber
    is 7.65. They are from the firm Geco. Letter follows.”
    signed—“Heinrich.”

[_Turning to the witness._] Were the cartridge cases and cartridges
which were discovered by you of the same caliber and did they bear the
mark of the same firm?

PROSOROVSKI: As I have already stated, the bullets discovered in the
bullet wounds were 7.65 caliber. The cases discovered during the
exhumation did indeed bear the trademark of the firm Geco.

MR. COUNSELLOR SMIRNOV: I now ask you to describe in detail the
condition of the body tissues and of the inner organs of the corpses
exhumed from the graves of Katyn.

PROSOROVSKI: The skin and the inner organs of the corpses were well
preserved. The muscles of the body and of the limbs had kept their
structure. The muscles of the heart had also kept their characteristic
structure. The substance of the brain was, in some cases, putrified; but
in most cases, it had kept its structural characteristics quite
definitely, showing a clear distinction between the gray and white
matters. Changes in the inner organs were mainly a sagging and
shrinking. The hair from the head could be easily pulled out.

MR. COUNSELLOR SMIRNOV: From the examination of the corpses, to what
conclusion did you come as to the date of death and date of burial?

PROSOROVSKI: On the basis of the experience I have gained and on the
experiences of Smolianinov, Semenovski, and other members of the
commission...

MR. COUNSELLOR SMIRNOV: One moment, Witness. I would like you to tell
the Tribunal briefly what these experiences were and how many corpses
were exhumed. Did you personally exhume them or were they exhumed in
your presence?

PROSOROVSKI: In the course of the great War, I was often medico-legal
expert during the exhumation and the examination of corpses of victims
who were shot by the Germans. These executions occurred in the town of
Krasnodar and its neighborhood, in the town of Kharkov and its
neighborhood, in the town of Smolensk and its neighborhood, in the
so-called extermination camp of Maidanek, near Lublin, so that all told
more than 5,000 corpses were exhumed and examined with my personal
co-operation.

MR. COUNSELLOR SMIRNOV: Considering your experience and your objective
observations, to what conclusions did you arrive as to the date of the
death and the burial of the victims of Katyn?

PROSOROVSKI: What I have just said applies to me as well as to many of
my colleagues who participated in this work. The commission came to the
unanimous conclusion that the burial of the Polish officers in the Katyn
graves was carried out about 2 years before, if you count from January,
the month of January 1944—that is to say that the date was autumn 1941.

MR. COUNSELLOR SMIRNOV: Did the condition of the corpses allow the
conclusion that they were buried in 1940, objectively speaking?

PROSOROVSKI: The medico-legal examination of the corpses buried in the
Katyn wood, when compared with the modifications and changes which were
noticed by us during former exhumations on many occasions and also
material evidence, allowed us to come to the conclusion that the time of
the burial could not have been previous to the autumn of 1941.

MR. COUNSELLOR SMIRNOV: Therefore, the year 1940 is out of question?

PROSOROVSKI: Yes, it is completely excluded.

MR. COUNSELLOR SMIRNOV: If I understood you rightly you were also
medico-legal expert in the case of other shootings in the district of
Smolensk?

PROSOROVSKI: In the district of Smolensk and its environs I have exhumed
and examined together with my assistants another 1,173 corpses, besides
those of Katyn. They were exhumed from 87 graves.

MR. COUNSELLOR SMIRNOV: How did the Germans camouflage the common graves
of the victims which they had shot?

PROSOROVSKI: In the district of Smolensk, in Gadeonovka, the following
method was used:

The top layer of earth on these graves was covered with turf, and in
some cases, as in Gadeonovka, young trees were planted as well as
bushes; all this with a view to camouflaging. Besides, in the so-called
Engineers’ Garden of the town of Smolensk, the graves were covered with
bricks and paths were laid out.

MR. COUNSELLOR SMIRNOV: So you exhumed more than 5,000 corpses in
various parts of the Soviet Union.

PROSOROVSKI: Yes.

MR. COUNSELLOR SMIRNOV: What were the causes of death of the victims in
most cases?

PROSOROVSKI: In most cases the cause of death was a bullet wound in the
head, or in the nape of the neck.

MR. COUNSELLOR SMIRNOV: Were the causes of death at Katyn similar to
those met with in other parts of the Soviet Union? I am speaking of
mass-shootings.

PROSOROVSKI: All shootings were carried out by one and the same method,
namely, a shot in the nape of the neck, at pointblank range. The exit
hole was usually on the forehead or in the face.

MR. COUNSELLOR SMIRNOV: I will read the last paragraph of your account
on Katyn, mentioned in the report of the Extraordinary Soviet State
Commission:

    “The commission of the experts emphasizes the absolute
    uniformity of the method of shooting the Polish prisoners of war
    with that used for the shootings of Soviet prisoners of war and
    Soviet civilians. Such shootings were carried out on a vast
    scale by the German Fascist authorities during the temporary
    occupation of territories of the U.S.S.R., for instance, in the
    towns of Smolensk, Orel, Kharkov, Krasnodar and Voroneszh.”

Do you corroborate this conclusion?

PROSOROVSKI: Yes, this is the typical method used by the Germans to
exterminate peace-loving citizens.

MR. COUNSELLOR SMIRNOV: I have no further questions to put to this
witness, Mr. President.

DR. STAHMER: Where is your permanent residence, Witness?

PROSOROVSKI: I was born in Moscow and have my domicile there.

DR. STAHMER: How long have you been in the Commissariat for Health?

PROSOROVSKI: I have been working in institutions for public health since
1931 and am at present in the Ministry of Public Health. Before that I
was a candidate for the chair of forensic medicine at Moscow University.

DR. STAHMER: In this commission were there also foreign scientists?

PROSOROVSKI: In this commission there were no foreign medico-legal
experts, but the exhumation and examination of these corpses could be
attended by anybody who was interested. Foreign journalists, I believe
12 in number, came to the burial grounds and I showed them the corpses,
the graves, the clothing, and so on—in short everything they were
interested in.

DR. STAHMER: Were there any foreign scientists present?

PROSOROVSKI: I repeat again that no one was present apart from Soviet
experts of the medico-legal commission.

DR. STAHMER: Can you give the names of the members of the press?

THE PRESIDENT: Dr. Stahmer, he was giving a long list of names before
and he was stopped by his counsel.

Why do you shake your head?

DR. STAHMER: I did not understand, Mr. President, the one list of names.
He gave a list of names of the members of the commission. My question is
that: The witness has just said that members of the foreign press were
present and that the results of the investigation were presented to
them. I am now asking for the names of these members of the foreign
press.

THE PRESIDENT: Well, go on.

DR. STAHMER: Will you please give me the names of the members of the
press, or at least the names of those who were present and to whom you
presented the results of the examination?

PROSOROVSKI: Unhappily I cannot give you those names now here; but I
believe that if it is necessary, I would be able to find them. I shall
ascertain the names of all those foreign correspondents who were present
at the exhumation of the corpses.

DR. STAHMER: The statement about the number of corpses exhumed and
examined by you seems to have changed somewhat according to my notes,
but I may have misunderstood. Once you mentioned 5,000 and another time
925. Which figure is the correct one?

PROSOROVSKI: You did not hear properly. I said that 925 corpses had been
exhumed in the Katyn wood, but in general I personally exhumed or was
present at the exhumation of over 5,000 in many towns of the Soviet
Union after the liberation of the territories from the Germans.

DR. STAHMER: Were you actually present at the exhumation?

PROSOROVSKI: Yes.

DR. STAHMER: How long did you work at these exhumations?

PROSOROVSKI: As I told you, on 14 January a group of medico-legal
experts left for the site of the burial grounds together with the
members of a special commission.

THE PRESIDENT: Can you not just say how long it took—the whole
exhumation? In other words, to shorten it, can you not say how long it
took?

PROSOROVSKI: Very well. The exhumation and part of the examination of
the corpses lasted from 16 to 23 January 1944.

DR. STAHMER: Did you find only Polish officers?

PROSOROVSKI: All the corpses, with the exception of two which were found
in civilian clothing, were in Polish uniforms and were therefore members
of the Polish Army.

DR. STAHMER: Did you try to determine from what camp these Polish
officers came originally?

PROSOROVSKI: That was not one of my duties. I was concerned only with
the medico-legal examination of the corpses.

DR. STAHMER: You did not learn in any other way from what camp they
came?

PROSOROVSKI: In the receipts which were found, dated 1941, it was stated
that the money was received in camp 10-N. It can therefore be assumed
that the camp number was obviously of particular importance.

DR. STAHMER: Did you know of the Kosielsk Camp?

PROSOROVSKI: Only from hearsay. I have not been there.

DR. STAHMER: Do you know that Polish officers were kept prisoners there?

PROSOROVSKI: I can say only what I heard. I heard that Polish officers
were there, but I have not seen them myself nor have I been anywhere
near there.

DR. STAHMER: Did you learn anything about the fate of these officers?

PROSOROVSKI: Since I did not make the investigations, I cannot say
anything about the fate of these officers. About the fate of the
officers, whose corpses were discovered in the graves of Katyn, I have
already spoken.

DR. STAHMER: How many officers did you find altogether in the burial
grounds at Katyn?

PROSOROVSKI: We did not separate the corpses according to their rank;
but, in all, there were 925 corpses exhumed and examined.

DR. STAHMER: Was that the majority?

PROSOROVSKI: The coats and tunics of many corpses bore shoulder straps
with insignia indicating officers’ rank. But even today I could not
distinguish the insignia of rank of the Polish officers.

DR. STAHMER: What happened to the documents which were found on the
Polish prisoners?

PROSOROVSKI: By order of the special commission the searching of the
clothing was done by the medico-legal experts. When these experts
discovered documents they looked them through, examined them, and handed
them over to the members of the special commission, either to
Academician Burdenko or Academician Tolstoy, Potemkin, or any other
members of the commission. Obviously these documents are in the archives
of the Extraordinary State Commission.

DR. STAHMER: Are you of the opinion that from the medical findings
regarding the corpses the time when they were killed can be determined
with certainty?

PROSOROVSKI: In determining the date on which these corpses had
presumably been buried, we were guided by the experience which we had
gathered in numerous previous exhumations and also found support by
material evidence discovered by the medico-legal experts. Thus we were
able to establish beyond doubt that the Polish officers were buried in
the fall of 1941.

DR. STAHMER: I asked whether from the medical findings you could
determine this definitely and whether you did so.

PROSOROVSKI: I can again confirm what I have already said. Since we had
great experience in mass exhumations, we came to that conclusion, in
corroboration of which we also had much material evidence, which enabled
us to determine the autumn of 1941 as the time of the burial of the
Polish officers.

DR. STAHMER: I have no more questions to put to this witness. Mr.
President, an explanation regarding the document which was just
submitted; I have here only a copy signed by Heinrich; I have not seen
the original.

THE PRESIDENT: I imagine the original is there.

DR. STAHMER: Thank you, Mr. President.

THE PRESIDENT: Yes, Colonel Smirnov, do you want to re-examine?

MR. COUNSELLOR SMIRNOV: Mr. President, I have no further questions to
put to this witness; but with the permission of the Tribunal, I would
like to make a brief statement.

We were allowed to choose from among the 120 witnesses whom we
interrogated in the case of Katyn, only three. If the Tribunal is
interested in hearing any other witnesses named in the reports of the
Extraordinary State Commission, we have, in the majority of cases,
adequate affidavits which we can submit at the Tribunal’s request.
Moreover, any one of these persons can be called to this Court if the
Tribunal so desires.

That is all I have to say upon this matter.

THE PRESIDENT: Dr. Stahmer?

DR. STAHMER: I have no objection to the further presentation of evidence
as long as it is on an equal basis; that is, if I, too, have the
opportunity to offer further evidence. I am also in a position to call
further witnesses and experts for the Court.

THE PRESIDENT: The Tribunal has already made its order; it does not
propose to hear further evidence.

DR. STAHMER: Thank you.

THE PRESIDENT: The witness can retire.

The Tribunal wishes to hear Dr. Bergold with reference to finishing the
case of the Defendant Bormann, and the Tribunal also understands that
counsel for the Defendant Von Neurath has some documents which he wishes
to present.

Dr. Von Lüdinghausen, have you some documents for Von Neurath?

DR. VON LÜDINGHAUSEN: Yes.

THE PRESIDENT: Will you present them now?

DR. VON LÜDINGHAUSEN: Mr. President, I have here two types of documents.
One type includes the documents which I have already offered in
presenting my evidence, and to which I have called the attention of the
Court. They are all in the document books which have been submitted to
the Court, and I believe it will be sufficient to hand these documents
to the General Secretary.

THE PRESIDENT: Dr. Lüdinghausen, you have already offered them in
evidence and they all have numbers, have they not?

DR. VON LÜDINGHAUSEN: Yes.

THE PRESIDENT: Very well.

DR. VON LÜDINGHAUSEN: Then I have a number of documents, probably 12 or
15, which have also been included in my document books, in translation.
However, I have not yet mentioned these documents in my presentation
recently, and have not yet asked the Court to take judicial notice of
them. If I may refer to them briefly, they are as follows:

A letter from Von Neurath to Hitler of 19 June 1933.

A copy of the minutes of the withdrawal of the Inter-Allied Military
Commission in 1926.

A speech...

THE PRESIDENT: Will you kindly give them the exhibit numbers which they
are to have as you offer them in evidence?

DR. VON LÜDINGHAUSEN: Yes.

THE PRESIDENT: The first one is a letter to Hitler of 19 June 1933. What
number will that letter have?

DR. VON LÜDINGHAUSEN: That is Number 12.

Number 32, minutes on the withdrawal of the Inter-Allied Military
Commission.

Number 50, a speech of Prime Minister MacDonald of 16 March 1933.

Number 51, an article of Von Neurath on the League of Nations, in the
periodical _Der Völkerbund_ of 11 May 1933.

Number 52, Hitler’s speech of 17 May 1933, the so-called “Peace Speech.”

Number 53, a statement of the German Ambassador Nadolny, in Geneva, of
19 May 1933.

Number 54, a statement of the American representative, Norman Davies, at
the Disarmament Conference, of 22 May 1933.

Number 55, a statement of the German Ambassador Nadolny, at the
Disarmament Conference of 27 May 1935.

Number 81, a speech by the then Minister Beneš of 2 July 1934.

Number 82, an excerpt from the speech of Marshal Pétain of 22 July 1934.

Number 83, the communiqué of the Reich Government of 26 July 1934.

Number 85, the communiqué of the Reich Government of 10 September 1934.

Number 86, a speech of Herr Von Neurath of 17 September 1934.

Number 88, excerpts from the speech of Marshal Smuts of 12 November
1934.

Number 119, a statement of the British Minister in the House of Commons
of 20 July 1936.

Those are the documents which I had not yet named, but which are already
contained in my document books. Mr. President, may I take this
opportunity to submit the following application, namely: The Court...

THE PRESIDENT: Those documents have all been translated, have they not,
Dr. Lüdinghausen?

DR. VON LÜDINGHAUSEN: Yes, they are all included, in translation, in the
document books which have been submitted.

Mr. President, may I now make an application to the Court? It is to the
effect that the Court should permit me to call again the Defendant Von
Neurath to the witness stand, for the following reason. As may be
recalled, in the course of cross-examination Sir David Maxwell-Fyfe
presented Document 3859-PS to the defendant, which document was a
photostatic copy of a letter from the defendant, dated 31 August 1940,
to the Chief of the Reich Chancellery, Lammers, with two enclosures. In
this letter the defendant asked Lammers to submit the two enclosures to
Hitler and to arrange, if possible, a personal conference or an
interview on the question of alleged Germanization mentioned therein.
The two enclosures of this letter to Lammers are reports and suggestions
on the future form of the Protectorate and concern the assimilation or
possible Germanization of the Czech people.

The Court will recall that the presentation of this rather extensive
document—it has 30 or 40 pages in this photostatic form if not
more—surprised the defendant, and at that moment he could not recall
the matter clearly enough to give positive and exhaustive information
about these documents immediately. Nevertheless, in cross-examination,
after a very brief look at these reports, he expressed doubts as to
whether these reports, as presented here in photostatic form, were
actually identical with the reports which were enclosed, according to
his instructions, in the letter to Lammers to be submitted to Hitler. A
careful examination of these photostatic copies was not possible in the
course of cross-examination; and, of course, I myself, since I did not
know the documents, was not able to comment upon them. Since Herr Von
Neurath was obviously overtired and exhausted after the
cross-examination it was not possible for me to examine the question and
discuss it with him on the same day; that was possible only on the
following day.

THE PRESIDENT: Yes, Dr. Von Lüdinghausen, the defendant may be recalled
for the purpose of being questioned about these two documents; but, of
course, it is an exceptional license which is allowed on this occasion,
because the object of re-examination is to enable counsel to elucidate
such matters as this.

DR. VON LÜDINGHAUSEN: Yes.

THE PRESIDENT: You may call him.

[_The Defendant Von Neurath resumed the stand._]

You are still under oath, of course.

DR. VON LÜDINGHAUSEN: Herr Von Neurath, do you recall the reason for
your letter to Dr. Lammers of 31 August 1940 and your request for him to
arrange a conference, an interview with Hitler?

VON NEURATH: Yes. As I said during my examination, in the course of the
summer of 1940 I learned that various Reich and Party agencies, among
others particularly the Gauleiter of the neighboring Gaue and Himmler,
had sent more or less radical reports and suggestions to Hitler. I knew
that Himmler, particularly, made quite extreme suggestions regarding a
partition of the Protectorate area and complete annihilation of the
Czech folkdom and people. These agencies were urging Hitler to put these
plans into effect as quickly as possible.

Since, as I have already emphasized, I was opposed to such plans and, on
the contrary, wanted to preserve the Czech people and folkdom and
protect them against the intentions of Himmler and his companions to
destroy them, I decided to make an attempt to induce Hitler not to carry
out any Germanization plans but to forbid them and to send a categorical
order to this effect to the Party and its agencies.

DR. VON LÜDINGHAUSEN: Do you recall how these two reports came about,
which were to be included in your letter to Lammers?

VON NEURATH: As far as I can recall, things developed as follows: Either
I myself dictated a report or one of my officials drew it up according
to my instructions; I believe the latter was the case. But I recall
definitely that this report was much briefer than the one submitted here
in photostatic copy. I remember, furthermore, that the conclusions drawn
in it were similar but much sharper and that the whole problem had to be
considered very carefully.

DR. VON LÜDINGHAUSEN: Now, tell us how and why the second report of
Frank came to be made.

VON NEURATH: From the various discussions which I had with Frank, I knew
that he, too, was opposed to this partition of the Protectorate
territory and the evacuation of the Czech population as proposed by
Himmler and that he shared my opinions, at least to that extent.
Therefore I considered it expedient, since Hitler had assigned Frank to
me as State Secretary because he knew the Czech country and people very
well, to point out to Hitler that this man, too, was opposed to
Himmler’s plans and advised Hitler against accepting them.

DR. VON LÜDINGHAUSEN: But for what reason did you especially emphasize
in your letter to Lammers that you shared the opinions expressed in
Frank’s report?

VON NEURATH: I considered it right to do this because Frank was a member
of the SS and a subordinate and confidant of Himmler. On the other hand,
I knew already at that time that Hitler was prejudiced against me,
because of my attitude toward the Czech people, which he considered much
too mild and lenient; and I was, therefore, convinced that together with
Frank I would be more likely to be successful in influencing Hitler to
my way of thinking than if I went to him alone. That was the reason why
I suggested that Frank should participate in the report. For the same
reason I did not write directly to Hitler, as I did usually, but to
Lammers. According to previous experience, I had to assume that if I had
written directly to Hitler, who on top of it was not in Berlin at the
time, he would either not read the report at all or would refer it to
Himmler.

DR. VON LÜDINGHAUSEN: How was this letter to Lammers and its enclosures
handled in your office?

VON NEURATH: I had the draft of the report of Frank submitted to me.
Then I dictated my letter to Lammers, and I sent it with my report and
Frank’s draft back to Frank’s office for a final review of the Frank
report and for the dispatch of the letter to Lammers together with both
versions. I did not see the letter to Lammers and the two reports again
before they were sent out nor did I see them, by the way, in Berlin at
the conference with Hitler.

DR. VON LÜDINGHAUSEN: The last question. How did you reach the
conviction that the photostatic copies, submitted here, of the two
reports could not be identical with the reports which were enclosed in
the letter to Lammers, according to your instructions?

VON NEURATH: As for the first report which I prepared, I have already
stated that according to my recollection it was much shorter than the
one submitted here in photostatic copy. Furthermore, this photostatic
copy does not bear my signature, not even my initials. But it is out of
the question that the final copy of this report, which was enclosed at
my office in the letter to Lammers, would not have been signed or at
least initialed by me; and the certificate of correctness, which,
remarkably enough, is contained in this report and which was prepared by
an SS Obersturmbannführer, is not signed. The photostatic copy which is
said to have been enclosed in the letter to Lammers does not even bear
my initials. The most noticeable thing, however, is the certificate of
correctness on the photostatic copy. This can have a meaning only if the
document enclosed in the letter to Lammers, in spite of not bearing my
signature, was enclosed in the letter nevertheless. But since the final
copy which my office sent to State Secretary Frank’s office with the
letter to Lammers was certainly signed by me, this certificate proves
that it was not the report signed by me which was enclosed in the letter
sent to Lammers but another one drafted by Frank or by officials in his
office. As for Frank’s own report, the text of the photostatic copy
here, to my recollection, is not identical with the text of the report
which I approved and which I then sent on together with my report to
Lammers...

THE PRESIDENT: Dr. Von Lüdinghausen, we have heard the explanation more
than once, I think, that the enclosure which was in the letter was not
the same as the one which he drew up. It does not get any more
convincing by getting told over again.

DR. VON LÜDINGHAUSEN: I only wanted to express it again. But if the
Tribunal believes that that explanation has been made previously, I may
dispense with it.

VON NEURATH: Mr. President, may I be permitted to make another statement
as to how I imagine—of course, I can only imagine—these things took
place? I am firmly convinced that if the two photostatic copies
submitted here were actually enclosed in the letter to Lammers, they
were prepared in Frank’s office, and enclosed without my knowledge.
Another possibility would be, of course, that Czech...

THE PRESIDENT: We are quite as able to imagine possibilities as you are.

The fact is that the letter was signed in his name, was it not? The
letter itself was signed?

DR. VON LÜDINGHAUSEN: Yes.

THE PRESIDENT: And he refers expressly to the enclosure?

DR. VON LÜDINGHAUSEN: Yes.

THE PRESIDENT: Very well; we understand it.

DR. VON LÜDINGHAUSEN: Yes. I wanted it to be made clear to the Court.
For, as I have said, I could not thoroughly examine the remarkable
characteristics of these two reports, the outer form and the text at the
moment of cross-examination. I have no further questions, Mr. President.

THE PRESIDENT: Then the defendant can return to the dock.

Do you want to ask any questions, Sir David?

SIR DAVID MAXWELL-FYFE: My Lord, I do not think so. If the Court would
just allow me, I should like to look at the document while the Court is
recessed and see whether there is any point that I might like to
question on.

THE PRESIDENT: We will recess now.

                        [_A recess was taken._]

SIR DAVID MAXWELL-FYFE: I have considered the matter; and I think it is
really in the stage of argument and not cross-examination; but, My Lord,
I should like Your Lordship just to observe, as the matter has been
raised, that there is a certificate, given by Captain Hochwald on behalf
of General Ecer, which states that the exhibit which was put in is a
photostat taken from the original of a document found in the archives of
the Reich Protector’s office in Prague, so that that theory appears,
from the certificate and the exhibit, that the copy-letter to Dr.
Lammers and the two memoranda were preserved and found in the office of
the Reich Protector. I do not want to say anything further in the
matter.

THE PRESIDENT: Let the defendant come back to the witness box. Oh—no he
need not come back. Dr. Bergold. Dr. Bergold?

FLOTTENRICHTER KRANZBÜHLER: Mr. President, since Dr. Bergold is absent
at present, I should like to ask whether I may submit the three
documents in my case which are still outstanding.

THE PRESIDENT: Very well, Dr. Kranzbühler.

FLOTTENRICHTER KRANZBÜHLER: I am offering as Exhibit Dönitz-100, the
affidavit subscribed by the chief of the American Navy, Admiral Nimitz,
as to American U-boat war against the Japanese Navy. The Tribunal
already knows what I wish to prove with this. I need not read anything
now because in the final presentation of my argument I shall have to
come back to this point.

THE PRESIDENT: The Tribunal would like to have the document read, Dr.
Kranzbühler.

FLOTTENRICHTER KRANZBÜHLER: I have the original text in English, Mr.
President, and I shall therefore have to read in English:

    “At the request of the International Military Tribunal, the
    following interrogatories were on this date, 11 May 1940, put to
    Fleet Admiral Chester W. Nimitz...”

THE PRESIDENT: You must have given the wrong date—1946, is it not?

FLOTTENRICHTER KRANZBÜHLER: 11 May 1946.

THE PRESIDENT: Yes, go on.

    FLOTTENRICHTER KRANZBÜHLER: “...put to Fleet Admiral Chester W.
    Nimitz, U.S. Navy, by Lieutenant Commander Joseph L. Broderick,
    United States Naval Reserve, of the International Law Section,
    Office of the Judge Advocate General, Navy Department,
    Washington, D.C., who recorded verbatim the testimony of the
    witness. Admiral Nimitz was duly sworn by Lieutenant Commander
    Broderick and interrogated as follows:

    “Q: ‘What is your name, rank, and present station?’

    “A: ‘Chester W. Nimitz, Fleet Admiral, United States Navy, Chief
    of Naval Operations of the United States Navy.’

    “1. Q: ‘What positions in the U.S. Navy did you hold from
    December 1941 until May 1945?’

    “A: ‘Commander-in-Chief, U.S. Pacific Fleet.’

    “2. Q: ‘Did the U.S.A. in her sea warfare against Japan announce
    certain waters to be areas of operation, blockade, danger,
    restriction, warning, or the like?’

    “A: ‘Yes. For the purpose of command of operations against Japan
    the Pacific Ocean areas were declared a theater of operations.’

    “3. Q: ‘If yes, was it customary in such areas for submarines to
    attack merchantmen without warning, with the exception of her
    own and those of her Allies?’

    “A: ‘Yes, with the exception of hospital ships and other vessels
    under “safe conduct” voyages for humanitarian purposes.’

    “4. Q: ‘Were you under orders to do so?’

    “A: ‘The Chief of Naval Operations on 7 December 1941 ordered
    unrestricted submarine warfare against Japan.’

    “5. Q: ‘Was it customary for the submarines to attack Japanese
    merchantmen without warning—outside of announced operation or
    similar areas since the outbreak of the war?’

    “A: ‘The reply to this interrogatory involves matters outside
    the limits of my command during the war; therefore I make no
    reply thereto.’

    “6. Q: ‘Were you under orders to do so?’

    “A: ‘The reply to this interrogatory involves matters outside
    the limits of my command during the war; therefore I make no
    reply thereto.’

    “7. Q: ‘If the practice of attacking without warning did not
    exist since the outbreak of the war, did it exist from a later
    date on? From what date on?’

    “A: ‘The practice existed from 7 December 1941 in the declared
    zone of operations.’

    “8. Q: ‘Did this practice correspond to issued orders?’

    “A: ‘Yes.’

    “9. Q: ‘Did it become known to the U.S. naval authorities that
    Japanese merchantmen were under orders to report any sighted
    U.S. submarine to the Japanese Armed Forces by radio? If yes,
    when did it become known?’

    “A: ‘During the course of the war, it became known to the U.S.
    naval authorities that Japanese merchantmen in fact reported by
    radio to Japanese Armed Forces any information regarding
    sighting of U.S. submarines.’

    “10. Q: ‘Did the U.S. submarines thereupon receive the order to
    attack without warning Japanese merchantmen, if this order did
    not exist already before? If yes, when?’

    “A: ‘The order existed from 7 December 1941.’

    “11. Q: ‘Did it become known to the U.S. naval authorities that
    the Japanese merchantmen were under orders to attack any U.S.
    submarine in any way suitable according to the situation; for
    instance, by ramming, gunfire, or by depth charges? If yes, when
    did it become known?’

    “A: ‘Japanese merchantmen were usually armed and always attacked
    by any available means when feasible.’

    “12. Q: ‘Did the U.S. submarines thereupon receive the order of
    attacking without warning Japanese merchantmen, if this order
    did not already exist before. If yes, when?’

    “A: ‘The order existed from 7 December 1941.’

    “13. Q: ‘Were, by order or on general principles, the U.S.
    submarines prohibited from carrying out rescue measures toward
    passengers and crews of ships sunk without warning in those
    cases where by doing so the safety of their own boat was
    endangered?’

    “A: ‘On general principles, the U.S. submarines did not rescue
    enemy survivors if undue additional hazard to the submarine
    resulted or the submarine would thereby be prevented from
    accomplishing its further mission. U.S. submarines were limited
    in rescue measures by small passenger-carrying facilities
    combined with the known desperate and suicidal character of the
    enemy. Therefore, it was unsafe to pick up many survivors.
    Frequently survivors were given rubber boats and/or provisions.
    Almost invariably survivors did not come aboard the submarine
    voluntarily, and it was necessary to take them prisoner by
    force.’

    “14. Q: ‘If such an order or principle did not exist, did the
    U.S. submarine actually carry out rescue measures in the
    above-mentioned cases?’

    “A: ‘In numerous cases enemy survivors were rescued by U.S.
    submarines.’

    “15. Q: ‘In answering the above question, does the expression
    “merchantmen” mean any other kind of ships than those which were
    not warships?’

    “A: ‘No. By “merchantmen” I mean all types of ships which were
    not combatant ships. Used in this sense, it includes fishing
    boats, et cetera.’

    “16. Q: ‘If yes, what kind of ships?’

    “A: ‘The last answer covers this question.’

    “17. Q: ‘Has any order of the U.S. naval authorities mentioned
    in the above questionnaire concerning the tactics of U.S.
    submarines toward Japanese merchantmen been based on the grounds
    of reprisal? If yes, what orders?’

    “A: ‘The unrestricted submarine and air warfare ordered on 7
    December 1941 resulted from the recognition of Japanese tactics
    revealed on that date. No further orders to U.S. submarines
    concerning tactics toward Japanese merchantmen throughout the
    war were based on reprisal, although specific instances of
    Japanese submarines committing atrocities toward U.S. merchant
    marine survivors became known and would have justified such a
    course.’

    “18. Q: ‘Has this order or have these orders of the Japanese
    Government been announced as reprisals?’

    “A: ‘The question is not clear. Therefore I make no reply
    thereto.’

    “19. Q: ‘On the basis of what Japanese tactics was reprisal
    considered justified?’

    “A: ‘The unrestricted submarine and air warfare ordered by the
    Chief of Naval Operations on 7 December 1941 was justified by
    the Japanese attacks on that date on U.S. bases and on both
    armed and unarmed ships and nationals without warning or
    declaration of war.’

    “The above record of testimony has been examined by me on this
    date and is in all respects accurate and
    true.”—signed—“Chester W. Nimitz, Fleet Admiral, U.S. Navy.”

This document bears the number Dönitz-100.

As my next document I submit an expert opinion given by the former naval
judge, Jäckel, on the jurisdiction of the naval courts for the
protection of the native population against encroachments by marines.
This document has been admitted by the Tribunal and is available in
translation and therefore I do not need to read it.

THE PRESIDENT: Will you give us the number?

FLOTTENRICHTER KRANZBÜHLER: Dönitz-49, Mr. President.

Then, Mr. President, some weeks back I made application to admit
extracts from the records of a war crimes court at Oslo. These had been
used by the Prosecution on the occasion of the cross-examination of
Grossadmiral Dönitz. At that time they were not numbered. From these
records I selected some extracts which prove that torpedo boat Number
345, whose crew were shot by reason of the Commando Order, was a boat
which was charged with sabotage acts. Due to this fact the High Command
of the Navy and also Admiral Dönitz were not informed about the
treatment meted out to these prisoners, and this question was settled
directly by means of discussions between Gauleiter Terboven and the
Führer’s headquarters. I ask that the High Tribunal admit this document
as evidence, since this document was used by the Prosecution. It would
receive the Number Dönitz-107.

COLONEL H. J. PHILLIMORE (Junior Counsel for the United Kingdom): My
Lord, I do not know if the Tribunal has before it the answer which the
Prosecution have put into this application.

THE PRESIDENT: Yes, we have just looked at it now.

COL. PHILLIMORE: Broadly speaking, it comes to this, that we are quite
prepared to put in the whole proceedings, but we should object to
extracts being put in; that is, amongst the affidavits and the evidence
of some of the witnesses, material to support the points for which
counsel for Defendant Dönitz contends. There is, on the other hand, a
body of evidence the other way on all those points. That is why, My
Lord...

THE PRESIDENT: Would it not save translation if you put in the passages
in the document upon which you rely?

COL. PHILLIMORE: If that would be more convenient, My Lord, we can do
that.

THE PRESIDENT: I do not know how long the document is. It may be very
long indeed.

COL. PHILLIMORE: The whole proceedings are very long. The trial lasted
for 4 days.

THE PRESIDENT: Then it would be appropriate that you should pick out the
parts on which you rely and Dr. Kranzbühler can put in...

COL. PHILLIMORE: My Lord, it is put in the answer that the document
against this defendant, which was proved in the defendant’s case, was an
affidavit by the Judge Advocate, who set out the effect of the evidence
accepted by the court.

THE PRESIDENT: The Tribunal follows that, but it thinks that it is
desirable that you should put in the passages upon which you as well as
the defense counsel rely.

FLOTTENRICHTER KRANZBÜHLER: May I submit this document, Mr. President?

THE PRESIDENT: What is the number again, please?

FLOTTENRICHTER KRANZBÜHLER: Number Dönitz-107, Mr. President.

THE PRESIDENT: And it contains extracts from these proceedings, does it?

FLOTTENRICHTER KRANZBÜHLER: Yes, extracts.

THE PRESIDENT: The Prosecution will put in their extracts and we will
consider them both.

FLOTTENRICHTER KRANZBÜHLER: Mr. President, then I have another question
dealing with the documents of the case which we have just dealt with,
the case of Katyn.

The witness, Professor Markov, mentioned the expert opinion given by the
Italian expert, Professor Palmieri, which is in the German _White Book_.
I should also like to submit this opinion as evidence, for the reason
that there is no mention of insects being found on the corpses as
Professor Markov asserted, but rather, “larvae.” To me the difference
appears to be that insects fly about during the summer whereas larvae
conceal themselves during the winter months, Mr. President, may I submit
this document?

MR. COUNSELLOR SMIRNOV: Mr. President, I should like to make just one
factual remark. In Professor Palmieri’s report it was indicated that the
“larvae” were discovered in the throats of the corpses. I cannot imagine
that “insects” were ever found in the throat of a corpse. That is why I
do not think that the presentation of the document by defendant’s
counsel serves a purpose.

THE PRESIDENT: Dr. Kranzbühler, you are specifying a particular document
referred to in the _White Book_, is that right?

FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President.

THE PRESIDENT: And you mean the whole of the document?

FLOTTENRICHTER KRANZBÜHLER: That document is about one page, Mr.
President.

THE PRESIDENT: Then you may put it in, subject to its being translated.

FLOTTENRICHTER KRANZBÜHLER: Very well, Mr. President.

MR. COUNSELLOR SMIRNOV: Mr. President, we are talking about a document
which is an account on the dissection of a corpse performed by Professor
Palmieri. It is no report but merely an account of an autopsy carried
out by Professor Palmieri himself.

THE PRESIDENT: Is it referred to in the conclusions or not?

FLOTTENRICHTER KRANZBÜHLER: It is put in the general record to the same
extent as the record of Professor Markov. It is the findings on the
autopsy which Professor Palmieri performed.

THE PRESIDENT: Very well.

FLOTTENRICHTER KRANZBÜHLER: Mr. President, I have still another document
in the case of Katyn, which I received from Polish sources just a few
days ago. This is a document which was written in English and appeared
in London in 1946. The title is, _Report on the Massacre of Polish
Officers in the Katyn Wood_. In this document Polish sources are used,
and I should like to offer this document to the Tribunal as evidence.

However, before I present certain lines of evidence, I would like to ask
that the High Tribunal examine this document, for there may be doubts
whether it can be used as evidence.

THE PRESIDENT: Dr. Kranzbühler, this document is printed for private
circulation only. It has no printer’s name on it, and it is entirely
anonymous.

FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President, these were the doubts
which I entertained. I submitted this document as I assumed that in view
of the importance of this case, the Tribunal would nevertheless want to
take official notice of the contents.

THE PRESIDENT: No, the Tribunal thinks it would be improper to look at a
document of this nature.

GEN. RUDENKO: Mr. President, I should just like to make one remark, as
in fact the Tribunal has already indicated its decision. The statement
of the defendant’s counsel that this document was received from the
Polish Delegation astounds me to say the least. I should like to know
from what Polish Delegation he received this document, because the
Polish Delegation represented here could not possibly produce such a
Fascist propaganda document as this.

THE PRESIDENT: I think General Rudenko misunderstood what Dr.
Kranzbühler said.

DR. SAUTER: Mr. President, four interrogatories were granted to me on
behalf of the Defendant Funk. When I presented my case, I could not yet
submit these affidavits because they had not been translated. In the
meantime, I have received these translations; and they have been
submitted to the Tribunal. I ask to be permitted to present them briefly
to the Tribunal at this point.

One of them, in Document Book Walter Funk, Supplement Number 2, will be
numbered Exhibit Number Funk-16. This is the very comprehensive
interrogation of the witness Landfried who held the position of state
secretary in the Ministry of the Defendant Funk. This witness—I do not
believe I need to read this record in detail—in answer to the first
question, deals with the economic policy of the Defendant Funk in the
occupied countries. He describes it in exactly the same way as it was
presented by Funk. In answer to the second question, he deals similarly
with the directions given by the Defendant Funk to the military
commanders and to the Reich Commissioners of the occupied countries.

Under Question 4, the witness deals with the question of the plundering
of the occupied territories. He confirms the fact that the Defendant
Funk always opposed such plundering, that he fought the black markets,
that he opposed devaluation of the currency, that he tried to maintain
currency in the occupied territory on the original level.

In reply to Question 5, the witness describes in detail how the
Defendant Funk tried to prevent financial overburdening of the occupied
countries, especially to lower the costs of occupation as far as
possible.

Then in the other questions, in Part 2, particularly in reply to
Question 11, the witness discusses the activities of the Defendant Funk
in the Ministry of Economics, with regard to German preparations in the
event of a war.

Then, in reply to Question 12, the witness examines the position of the
Plenipotentiary General for Economy and he concludes that in practice it
was the position of a figurehead only. However, I do not wish to read
these detailed statements and take up too much of the time of the
Tribunal, for in the main these are only repetitions of statements that
have already been made.

In the last two questions, Numbers 14 and 15, the witness Landfried,
who, as I have already said, was for years the defendant’s deputy,
describes the defendant’s attitude toward the policy of terror and his
fundamental attitude in regard to the use of foreign workers and similar
matters. I ask that the Tribunal take judicial notice of this very
detailed testimony and that these brief statements will suffice.

The next interrogatory comes from the witness Emil Puhl. This is the
same witness who was interrogated in this courtroom about other
questions, namely the question of gold teeth, _et cetera_. This is the
interrogatory and the answers of the witness Emil Puhl, Document Book
Funk, Supplement Number 3, Exhibit Funk-17.

THE PRESIDENT: Dr. Sauter, has this interrogatory been granted?

DR. SAUTER: Yes, Mr. President.

THE PRESIDENT: He gave his evidence. We do not generally allow
interrogatories to witnesses who have given their evidence.

DR. SAUTER: Mr. President, the matter was like this: As far back as
December I had applied for this interrogatory and repeatedly asked for
it, but it did not arrive. And only after 2 days of cross-examining, was
this witness Emil Puhl suddenly questioned by the Prosecution on
entirely different subjects, that is the matter of gold deposits made by
the SS, rather of gold teeth. This interrogation by the Prosecution did
not refer to the interrogatory, which I believe was granted by you in
February.

THE PRESIDENT: Dr. Sauter, what I mean is this: Supposing the Tribunal
is asked to grant an interrogatory and it grants the interrogatory, and
then the witness is subsequently called to give evidence. When he is
called to give evidence, he ought to be questioned upon all the matters
which are relevant to the Trial. The Tribunal does not want to have to
read his evidence in one place and then his interrogatory in some other
place.

Is there any objection, Mr. Dodd, to accepting it in this case?

MR. DODD: No, I have no objection, Mr. President. That is the situation.
It was granted before Puhl was called. He was called here for
cross-examination and I do not recall offhand whether or not counsel
inquired concerning these matters that are contained therein. We have no
objections. It may be some annoyance to the Tribunal, which we regret.

DR. SAUTER: Mr. President, the witness Puhl, during his examination in
the French camp, also had the questions of the cross-examination
submitted to him which the Prosecution asked for and they were answered
by him. Thus he was interrogated not only about the points which I
raised, but also about the questions put in the cross-examination by the
Prosecution. Therefore, I take the liberty of submitting this document,
which is an interrogatory of Emil Puhl, Document Book Number 3,
Supplement Number 3, and to which is assigned Exhibit Number Funk-17.

This witness Puhl, who was the vice president of the Reichsbank, in this
interrogatory deals solely with matters entirely different from the
subjects dealt with here in his examination, namely, the preparations
which the Reichsbank President, Dr. Funk, made in the event of war; that
is Question Number 1, concerning the handling of the clearing debts, and
Question Number 2, about the higher valuation of the Danish currency...

THE PRESIDENT: The Tribunal thinks you need not read the interrogatory
but the Tribunal will allow it to go in in this case.

DR. SAUTER: Thank you, Mr. President. I wanted only to sketch the
contents of this testimony briefly.

Then I submit additional testimony, given by a witness, which has been
granted by the Tribunal. It is the testimony given by the witness Heinz
Kallus, to be found in Document Book Walter Funk, Supplement 4, and is
assigned Exhibit Number Funk-18. I also submit this testimony to the
General Secretary and I should like to ask, in order to save time, that
the Tribunal take judicial notice of its contents.

As my fourth and last document there is an affidavit subscribed by Mr.
Messersmith, a supplement to a previous statement which has already been
submitted to the Tribunal. This is very brief, in fact it is but one
sentence and it may be found in the Document Book Walter Funk,
Supplement Number 5, with Exhibit Number Funk-19. I also submit this
document. And now I have arrived at the conclusion of my report, Mr.
President. Thank you very much.

DR. THOMA: Mr. President, I should like to submit to the Tribunal the
testimony of the witness Dr. Beil. Up to now I had received this
testimony only in English. I have fetched it again from the Translation
Division so that I could submit it as Exhibit Number Rosenberg-50. In
this connection I have another request. This interrogatory contains
important questions dealing with the attitude adopted by the East
Ministry in the matter of allocation of labor and it is of such
importance that I ask the permission of the Tribunal to have it read.
Since I am not entirely conversant with the English language, I should
like to ask to have an interpreter read this interrogatory.

THE PRESIDENT: Dr. Thoma, has this document been offered in evidence
before: It was granted by the Tribunal, was it not, this interrogatory?

DR. THOMA: Yes, it has already been granted by the Tribunal.

THE PRESIDENT: Is it necessary to read it? Can you not submit it in
evidence and the Tribunal will consider it?

DR. THOMA: I leave that, of course, to the Tribunal to decide. I wanted
to point out only that this is very important and decisive testimony in
regard to the question of manpower allocation in the East Ministry.
However, I shall leave that to the judgment of the Tribunal.

THE PRESIDENT: Can you not summarize it?

DR. THOMA: Mr. President, I have received only an English translation,
and I do not wish to attempt to do anything with it. But I believe there
are only 2 pages—the interpreter will read that in no time at all.

THE PRESIDENT: Let the interpreter read it then.

INTERPRETER: Exhibit Number Rosenberg-50:

    “Copy. Completed interrogatory of Ministerialrat Dr. Beil, on
    behalf of Rosenberg.

    “The witness, having been duly sworn, states:

    “Q: ‘Were you the permanent official (Sachbearbeiter) in the
    East Ministry (Ost Ministerium) in charge of the questions of
    labor and social policy?’

    “A: ‘Yes, I was one of 10 permanent officials; we originally
    started with 52, but as the East Front receded the staff was
    finally reduced to 10. I was in charge of the administration
    side of the labor and social policy. The head of the department
    was Landesbauernführer Peukert.’

    “Q: ‘Was the East Ministry in favor of voluntary recruiting of
    workers in the East?’

    “A: ‘Yes, of voluntary recruiting only, my instructions being
    that it should only be carried out on this basis.’

    “Q: ‘Are any results known?’

    “A: ‘Yes, but the results were not as great as anticipated, only
    some 300,000 to 400,000 volunteered and most of these were from
    the Ukraine, Lithuania, and Estonia.’

    “Q: ‘Were there any negotiations about decreasing the quotas
    ordered by the Plenipotentiary General for Allocation of Labor
    (GBA)?’

    “A: ‘Yes, negotiations for decreasing the quotas took place but
    broke down owing to Sauckel demanding something like a million
    workers to be transferred to the interior.’

    “Q: ‘Who was responsible for the care and control of the East
    Workers (Ostarbeiter) in the Reich?’

    “A: ‘The German Labor Front (Arbeitsfront) and the Reich Food
    Estate (Reichsnährstand) were responsible for the care of the
    East Workers, the former for workers in munitions and heavy
    industry and the latter for agricultural workers.’

    “Q: ‘What was the point of view of the Department ASO...’”

DR. THOMA: ASO, if I may interrupt, is the Labor, Social, and Political
Department of the East Ministry.

INTERPRETER: [_continuing._]

    “Q: ‘What was the point of view of the Department ASO concerning
    the treatment of the East Workers in the Reich?’

    “A: ‘The view of my Department ASO was that the voluntary
    recruiting of workers on a free movement basis, thus taking them
    out of the barbed-wire-enclosed factories, would be the best
    method of treatment; we also advocated the removal of the arm
    badges, worn originally on the arm and later over the left
    breast, which carried the word “East” so as to distinguish them
    from workers from the West, who never at any time wore badges.
    The wording being later changed to “Greater Russia,” “White
    Russia,” and “Ukraine,” the people from the Baltic States did
    not wear the arm badge. Certain Russians, small groups of
    Cossacks, Tartars, and one or two others were not compelled to
    wear the arm band, as they were anti-Bolshevistic and
    pro-German; and a certain proportion of these were eventually
    called up into the German Army. Some 7,000 youths of Ruthenia
    were called up by ASO and these were apprenticed at Junkers
    Works.’

    “Q: ‘Is the Central Office (Zentralstelle) for the eastern
    people (Ostvölker) at the East Ministry known to you? How was
    this organized?’

    “A: ‘Yes, it was considered to be a consulate for the East;
    members of the staff were partly Germans and partly local
    employees from the East, who were considered suitable for such
    employment. Some of the foreign employees were placed at the
    disposal of the country offices to look after the interests of
    their fellow countrymen working in the countries. At the Central
    Office were instituted offices for each of the eastern states,
    each office being controlled by a German, some of whom had
    originally come from these states. There was also a welfare
    branch which was run by persons from these eastern states, to
    look after the comfort, _et cetera_, of their individual
    countrymen; there was also a religious branch which was run by
    clergy from these countries, but this branch was not very
    successful as there was an insufficiency of priests.’

    “Q: ‘Now, with the help of the DAF, were the complaints followed
    up?’

    “A: ‘The interests of foreign workers were always looked after;
    missions were sent to the various concentrations of East Workers
    to find out how they were progressing and what kind of treatment
    they were receiving. These missions dealt with complaints
    submitted to them on their visits, but the Central Office had to
    deal also with written complaints received through the post.’

    “Q: ‘Is a printed circular to the authorities in the country
    known to you, that ordered a just treatment? Details? What was
    the story about the families who were evacuated by the Army
    Group Center and about the children 10-14 years old?’

    “A: ‘Yes, there was a circular issued, dealing with this
    question, and it gave details at great length for the just
    treatment of the East Workers. This circular was issued at the
    request of the Ministry of the East, through Sauckel. A second
    circular was issued by Rosenberg dealing with the just treatment
    of workers from the East only. I have no knowledge of this
    story, as this was dealt with entirely by the Army Group
    Center.’

    “Q: ‘Does the witness know the pamphlet issued by the East
    Ministry to the managers of enterprises concerning the nations
    of eastern Europe and the attitude towards them?’”

THE PRESIDENT: Dr. Thoma, that affidavit does not seem to be short at
all. It all seems to be cumulative. Every word of it is what we have
heard before and heard not only once, but over and over again.

INTERPRETER: Dr. Thoma has just said that the last sentence is coming
up.

DR. THOMA: There are two more short sentences.

INTERPRETER:

    “A: ‘There were two pamphlets issued; one issued by Sauckel, and
    the other issued in conjunction with DAF and Sauckel and the
    Ministry for the East.’

    “Q: ‘Has he one handy?’

    “A: ‘I have not got a copy of this pamphlet.’

    “(Signed) Beil.”

THE PRESIDENT: Dr. Thoma, the Tribunal rely on counsel, you know; and
when you tell us that this is an important affidavit, we rely on what
you tell us. In the opinion of the Tribunal, the reading of the
affidavit was an absolute waste of the Tribunal’s time.

DR. THOMA: I should like to put another request to the Tribunal. I have
asked that I be granted an interrogatory for the
Reichshauptstellenleiter Dr. Oeppert, of the office of the Delegate of
the Führer for the supervision of the entire ideological and mental
relation of the NSDAP under Rosenberg’s office. This affidavit has not
been granted to me, but I already have it on hand.

THE PRESIDENT: Has the Prosecution seen it?

DR. THOMA: No, Mr. President, I do not think so. I submitted an
application to the General Secretary. Whether this request has already
been transmitted to the Prosecution, I do not know.

THE PRESIDENT: Well, the only application that we have got, as far as I
can see, is an interrogatory to Dr. Köppen in lieu of Dr. Stellbrecht.
Is that the one that you are speaking about now?

DR. THOMA: No. Mr. President, I was granted permission to interrogate
Dr. Köppen instead of Dr. Stellbrecht, and the interrogatory has already
been sent off. This, however, is a new application regarding Dr. Oeppert
and has not yet been decided upon.

THE PRESIDENT: You had better submit it to the Prosecution and see
whether they have any comment to make on it, and we can take it up
tomorrow.

DR. THOMA: Thank you very much, Mr. President.

DR. KUBUSCHOK: In the case of Papen there are six interrogatories which
have not been disposed of. Three of them have been returned in the last
few days and are in the stage of being translated. I asked, when I
received my last interrogatory, to be allowed to submit all six at one
time to the Tribunal.

Then, without my taking any steps to get it, I received an affidavit 3
days ago from a foreign journalist, Rademacher von Unna, from Milan,
Italy. This affidavit is being translated at present. I submitted it to
the British prosecutor, and he does not object. I ask to be allowed to
submit this affidavit later with the remainder of my documents.

THE PRESIDENT: Yes, certainly you may submit it. We shall then pass an
opinion upon it as to its admissibility.

DR. KUBUSCHOK: Thank you, Mr. President.

DR. ALFRED SEIDL (Counsel for Defendants Frank and Hess): Mr. President,
I ask permission to submit the answers to the interrogatories from the
witnesses which have not yet been submitted. As Exhibit Frank-19 I
submit the answers to the interrogatory given by the witness Dr. Ernst
Böpple. Böpple was State Secretary in the Government General, and he has
answered 41 questions in all.

As Number Frank-20, I submit the answers to an interrogatory given by
the witness Max Meidinger. Meidinger was chief of the chancellery of the
Government General. He has answered 43 questions. This interrogatory, as
well as the first interrogatory by Böpple, as far as I could make out,
has not been translated yet, although I handed these interrogatories in
to be translated about 10 days ago. But attached to the interrogatory
there is an English translation which was made during the interrogation.

As Number Frank-21 I submit the answers given by the witness Gassner,
who answered 49 questions. Gassner was press chief in the Government
General.

Number Frank-22 will be the interrogatory deposed by the witness Dr.
Stepp, who in the end was president of the Court of Appeals
(Oberlandesgericht). He deals mainly with the efforts made by the
Defendant Frank in the years 1933 and 1934, in his capacity as Bavarian
Minister of Justice, for the dissolution of the concentration camp at
Dachau.

I should also like to take this opportunity, Mr. President, of pointing
out an error of translation which does not refer to the documents of
Frank but to a document which was submitted on behalf of the Defendant
Hess. Although it was not used by the Prosecution with regard to the
personal responsibility of Rudolf Hess, it is found in the document
book, and the document concerned is Exhibit USA-696, Document 062-PS.
That is a directive of 13 March 1940, the same directive which was
mentioned last Saturday in the case of the Defendant Bormann, on which
occasion the President himself read Figure 4 of this directive, which
was submitted as an appendix to this directive of 13 March. There is a
very serious error in translation, which completely distorts the sense
of the directive and which, I must say, can have very dangerous
consequences.

Under Figure 4 the words “unschädlich gemacht” (made harmless) were
translated as “liquidated.”

THE PRESIDENT: If there is an error in the translation, you had better
apply to the General Secretary; and he will have the matter gone into by
the Translation Division.

DR. SEIDL: Yes, Mr. President, but the matter does not seem to be as
simple as that. The translator obviously had the feeling himself that
his translation was not reproducing the sense quite accurately, because
in parentheses he added “unschädlich gemacht.” In my opinion this
sentence must be translated as follows: “Likewise, enemy parachutists
are immediately to be arrested or made harmless.” The sense was
obviously that the parachutists...

THE PRESIDENT: I dare say, Dr. Seidl, but we do not have the document
before us and we do not all of us understand the German language.
Therefore, it had better be referred to the Translation Division. It is
no good referring it to us.

DR. SEIDL: Then I shall put a written application to the General
Secretary, Mr. President.

THE PRESIDENT: Have the Prosecution any objection to these
interrogatories which Dr. Seidl has been dealing with? Have the
Prosecution had the opportunity of putting cross-interrogatories if they
wanted to do so?

COL. PHILLIMORE: My Lord, I am told that we think so, with the possible
exception of the last one. Perhaps I could look into it overnight.

THE PRESIDENT: Very well.

COL. PHILLIMORE: I will look into that point and let the Tribunal know.

My Lord, the Prosecution have a few documents to put in. I have eight,
and I think my friend Mr. Dodd has three. I could do it very quickly,
but it might be more convenient to do it tomorrow morning.

THE PRESIDENT: We will go into all these documents tomorrow morning.
There will be some others on behalf of some of the other defendants. We
will also hear the witnesses Kempka and Walkenhorst, I believe it is,
whom Dr. Bergold wishes to call.

The Tribunal desires Dr. Bergold to be here tomorrow morning in order to
be able to examine these witnesses.

The Tribunal will now adjourn.

      [_The Tribunal adjourned until 3 July 1946 at 1000 hours._]




                     ONE HUNDRED AND SEVENTIETH DAY
                         Wednesday, 3 July 1946


                           _Morning Session_

THE PRESIDENT: Has Dr. Bergold asked any of the defendants’ counsel to
represent him?

[_There was no response._]

Has the Marshal been able to get in touch with Dr. Bergold?

MARSHAL: No, Sir.

DR. STAHMER: Mr. President, Dr. Bergold was advised yesterday that his
presence would be required in the courtroom today. As far as I have
heard—and I have only heard this—the General Secretary also got in
touch with him regarding this matter. I am sorry I cannot tell you any
more about it. As far as I know, he did not ask anyone to represent him
in Court today.

THE PRESIDENT: Thank you, Dr. Stahmer.

DR. STAHMER: Mr. President, I shall look into this matter immediately,
to see whether he has arrived or whether I can contact him.

THE PRESIDENT: Very good; and Dr. Stahmer, I think the best course would
be for the Tribunal to consider the various applications with reference
to interrogatories and documents, which I think you and other counsel
wish to offer in evidence, and the Tribunal will then examine these
witnesses if Dr. Bergold is not here by that time. The Tribunal, of
course, expect him to be here if it is possible. Perhaps you will
communicate with him, and the Marshal should also communicate with Dr.
Bergold.

DR. STAHMER: Yes.

MARSHAL: Yes, Sir.

PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Mr.
President, I have learned that the son of Dr. Bergold returned yesterday
unexpectedly and suddenly from a prisoner-of-war camp. Therefore, Dr.
Bergold went to his home, a short distance from Nuremberg. I asked his
secretary to go to Dr. Bergold’s home and to bring him here and I assume
he will be here within approximately half an hour.

THE PRESIDENT: Dr. Stahmer, you have some interrogatories, I think,
which you want to offer in evidence, have you not?

DR. STAHMER: Yes, Sir. At the end of my presentation I still had some
interrogatories which I had been permitted to present but which had not
arrived.

First of all, I shall turn to the interrogatory of Kammhuber, who was a
general in the Air Force. He submitted an organizational study for 1950,
which was completed on 2 May 1938. He was questioned about the purpose
and significance of this study and he stated—I will give a short
summary—that a part of it, which came under the heading of “long term
objective” was a tentative sketch based on theoretical assumptions. Then
there was a second part which gave the deadline of 1942, and the interim
solution for 1 October 1938. This was a positive proposal for the
organization of the Luftwaffe.

This study was compiled by the author on his own initiative. The witness
does not know whether it was actually submitted to Göring. He considers
it improbable, but he does assume that he did suggest the positive
proposal for the organization of the Luftwaffe to Göring.

That is the substance of this interrogatory which will be called Exhibit
Number Göring-54.

I have another interrogatory which I should like to submit, which
originates from General Kurt Student. This deals with the air attack on
Rotterdam in May of 1940. It is an explanation...

THE PRESIDENT: Have you got copies of these affidavits, I mean these
interrogatories? We have got this one you are now offering of Student,
but we have not got the one of Kammhuber.

DR. STAHMER: Mr. President, I submitted this material to the Translation
Division and I asked that the translations should be ready. I shall look
into the matter and see what has become of it. At any rate, I did submit
the originals to the Translation Division.

THE PRESIDENT: Yes; the General Secretary will look into it. And this
one of Student, has that been applied for and granted? It is not on my
list.

DR. STAHMER: Yes, Mr. President, it has been granted, and the
Prosecution has submitted a counterinterrogatory to this one. I
believe...

THE PRESIDENT: Very well.

DR. STAHMER: If I am not mistaken, this interrogatory of Student’s was
granted on 14 February, if I remember rightly.

Student deals with the air attack on Rotterdam in May 1940. He gives the
necessary explanation as to how it came about that during capitulation
negotiations bombs were still being dropped on Rotterdam. Here, too, I
believe, I can refer to this interrogatory. The facts were that
capitulation negotiations were in progress when an air attack had been
planned and the squadron which was being employed could not be advised
in time by wireless. Then the ground troops gave signals, which were
misunderstood by one group...

THE PRESIDENT: It appears that it covers the same ground that has
already been covered in evidence; does it not?

DR. STAHMER: It has been dealt with in the examination; yes, that is
correct, Mr. President.

THE PRESIDENT: Then it should not be read under any circumstances now.

DR. STAHMER: Then I shall submit this document...

THE PRESIDENT: Yes, offer it in evidence. But I mean, you need not read
it in detail.

DR. STAHMER: Very well, Mr. President. This will be Exhibit Number
Göring-53.

Then, Mr. President, I have another interrogatory by a general of the
Air Force, Koller, which I should like to submit. This will be submitted
as Exhibit Number Göring-55.

Mr. President, I ask the permission of the High Tribunal to read these
questions, for there is a special significance connected with the
testimony given by this witness in relation to the defendant in this
proceeding:

    “Question 1: Did the former Reich Marshal Göring at any time
    issue an order that enemy airmen who had been shot down should
    be handed over to the Police, the SD, or that they should be
    shot without a trial?

    “Answer: As far as I know, no. In any case, I know of no such
    order issued by the Reich Marshal.

    “Question 2: Did the former Reich Marshal Göring help to
    formulate an order on the strength of which the British flying
    officers who escaped from Stalag III at Sagan in March 1944 were
    shot by the Police or SD?

    “Answer: General Korten told me that the Luftwaffe, the Air
    Force—meaning the Reich Marshal and he, Korten, himself—had no
    part in the issuing of this order.

    “Question 3: Did the former Reich Marshal Göring learn of the
    fact contained in Question 2 only after the order given by
    Hitler had been carried out?

    “Answer: General Korten told me that he and the Reich Marshal
    did not get to know of it until later.

    “Question 4: On what day was this order issued by Hitler?

    “Answer: I do not know.

    “Question 5: On what day, or on what days, was this order
    carried out?

    “Answer: I do not know.

    “Question 6: Do you know whether the former Reich Marshal Göring
    very strongly condemned the shooting of these 50 British Air
    Force officers?

    “Answer: General Korten told me that the Reich Marshal was very
    angry about this shooting.

    “Question 7: Have you any knowledge as to whether the former
    Reich Marshal Göring and his deputy for the Air Force, the Chief
    of the General Staff, repeatedly remonstrated with Hitler about
    the measures which Hitler had ordered to be taken against the
    enemy terror-fliers who had been shot down?

    “Answer: According to statements which General Korten made to me
    in June of 1944, that is correct. I remember too that some time
    afterward it was reported to me that the Reich Marshal had
    complained to the Führer about the action taken by Party
    organizations and individuals among the population against
    so-called terror-fliers, for the reason that some of our own air
    crews had come to harm.

    “In March of 1945 he flatly turned down the order given by the
    Führer that all enemy crews which had been shot down and which
    would be shot down in the future should be turned over to the
    SD.

    “Replying to Questions 1 to 7, I should like to state in
    explanation and in supplement: During the period which is
    covered by the report I was Chief of the Luftwaffe Operations
    Staff. In February 1944 the Führer’s headquarters transferred to
    Berchtesgaden the High Command of the Armed Forces, the Reich
    Marshal with his personal entourage and the Chief of the General
    Staff of the Air Force, General Korten, together with two or
    three ordnance officers. I had to stay with the High Command of
    the Luftwaffe, that is, with the whole working staff known as
    Robinson, in East Prussia, as it was expected that the Führer’s
    headquarters would have to be moved back quickly. The whole
    signal apparatus and the apparatus for the issuing of orders for
    Luftwaffe supplies was to be under the control of Robinson.

    “Due to the separation of the High Command of the Luftwaffe on
    the one hand and the Commander-in-Chief and Chief of General
    Staff on the other hand, a separation which was prolonged from
    week to week, we in East Prussia did not have knowledge about
    many things which were being handled directly in Berchtesgaden.
    Often we received no knowledge at all of important Führer
    directives, or if we did, we received the information very late.
    It was not until the beginning of June—I believe it was the
    week after Whitsun—that I, together with some assistant
    officers, was transferred to Berchtesgaden. From February until
    that time, I think I had attended only one conference at
    Berchtesgaden.

    “As to Questions 2 to 6, which deal with Sagan, it was from
    General Korten that I learned, and I believe Colonel Christian
    informed me almost at the same time, that the airmen who had
    escaped from Sagan had been shot by order of the Führer. I
    rather think I heard about it first from General Korten, who, if
    I remember rightly, told me about it during one of the rather
    long telephone conversations which we had every evening. Korten
    made it quite clear that he disapproved of this, for the reasons
    which I mentioned in reply to Questions 2, 3, and 6. The
    conversation must have taken place at the end of March or the
    beginning of April. However, I cannot give the exact date.

    “In reply to Questions 1 and 7, concerning the terror-fliers, it
    was approximately the beginning of June 1944—at first I thought
    that it was in July, but I think now that it must have been
    June—when General Korten advised me that the Führer intended to
    order that terror-fliers be left to the fury of the people.

    “We discussed this matter repeatedly and we all agreed in our
    opposition. We had always considered the direct attacks by
    low-flying enemy aircraft on the civilian population, on women
    and children, gatherings of civilians, civilian passenger
    trains, hospitals, school children who were out for a walk, our
    own crews who were parachuting to earth, and farmers who were
    tilling their fields, cruel and contrary to international law,
    but we did not consider the decree which the Führer intended to
    issue to be the proper way to solve this very difficult problem.
    Our reasons for this refusal were articles of war, international
    law, it was against fundamental soldierly principles, and it
    would lead to many misunderstandings inflicting harm not only to
    enemy fliers, but also to our own men and affecting the morale
    of our own crews...”

THE PRESIDENT: Dr. Stahmer, is this not really going into argument and
not dealing with facts? It really is not necessary for you to read all
this witness’ arguments about it. He is not really dealing with facts at
all now and it is in detail...

DR. STAHMER: Mr. President, these are the facts which he discussed with
General Korten, the facts which decided them to reject the Führer’s
order. These were the reasons which he and Korten discussed...

THE PRESIDENT: Some of what you have read no doubt is a matter of fact,
but what you are now reading is a matter of argument.

DR. STAHMER: No, Mr. President.

THE PRESIDENT: Dr. Stahmer, surely you can summarize the rest of this.

DR. STAHMER: Mr. President, this document is of great importance to the
defendant because it deals with just those points with which he is
accused and which distress him most and...

THE PRESIDENT: I heard you say it is of great importance and therefore
you have been reading it and insofar as it is statement of fact, it
seems to me that there is some excuse for reading it in detail. But when
you come to matters of argument, it seems to me there is no excuse for
reading it, because argument by a particular witness is not really
relevant for the Tribunal’s consideration at all. Summarize the
argument, if you like. I mean, you have read the factual part. Summarize
the rest which—maybe you can tell us, if you like, what the argument
is.

DR. STAHMER: Very well, Mr. President. General Korten further stated
that all the documents which are relevant to the question of
terror-fliers and the shooting of the Royal Air Force officers have been
submitted to him and after perusing them he arrived at the conclusion
that the contents of these documents is proof of the fact that the High
Command of the Armed Forces as well as the Reich Marshal opposed this
action and did everything in their power to prevent the measure intended
by Hitler from being put into effect. He particularly points out that in
one of these letters there is a marginal note to the effect that it was
not possible to get a reply from the Commander-in-Chief of the Air
Force, and he concludes from that that the Reich Marshal personally
opposed any final decision of this matter.

Then there is a further incident dealt with in:

    “Question 8: Did the Führer, for the reason stated under Figure
    5, on the occasion of a situation discussion and in the presence
    of all who attended it, excitedly accuse the German Luftwaffe of
    having made a mutual coward’s agreement with the Allied Air
    Forces?

    “Answer: During the first half of March 1945, Bormann showed the
    Führer a note taken from a correspondent’s report in the Allied
    press. The gist of this note was: The crew of an American
    fighter plane, which shortly before had been shot down over
    Germany, had been picked up by advancing American troops. The
    crew had testified that the enraged civilians had mishandled
    them, had threatened them with death, and in all probability
    they would have been lynched if it had not been for the German
    soldiers who had liberated them and protected them. Bormann
    pointed out to Hitler in a few words that this confirmed the
    fact that German soldiers, in instances such as this, were going
    against their own countrymen; and he concluded his remarks
    somewhat as follows: ‘My Führer, that is the way your orders are
    being carried out.’ Thereupon in the presence of all who
    attended the situation discussion the Führer made some very
    excited statements and among other things the Führer said to me,
    ‘If my orders are not being carried out it is due to the
    cowardice of the Luftwaffe because the men in the Luftwaffe are
    cowards and they are afraid that something might happen to them,
    too, some day. The whole business is nothing but a cowards’
    agreement between the German Luftwaffe and the English and
    American airmen.’ I reported this to the Reich Marshal.

    “Whether Hitler made the same remark to the Reich Marshal
    personally, that I am not able to say; but I consider it quite
    probable, because when making reproaches of this kind,
    especially if they applied to the Luftwaffe, he often repeated
    himself and used the same expressions.

    “Question 9: On what day did this discussion take place?

    “Answer: I cannot give the date.”

Now we come to:

    “Question 10: Did the Führer repeatedly order the former Reich
    Marshal to divulge the name of the officer of the Luftwaffe who,
    in May of 1944, protected an Allied airman who had been shot
    down in Munich from being lynched by the population? But despite
    repeated inquiries on the part of the Führer, the Reich Marshal
    gave no instructions to find out the name of this officer and to
    make it known to the Führer?”

I can summarize the answer. He says he cannot state this from his own
experience; it had only been reported to him that an officer of the
Luftwaffe and an Ortsgruppenleiter had interfered on behalf of this
American crew; that the Ortsgruppenleiter, who was known, was shot on
Hitler’s order; that Hitler then demanded to have the name of the
Luftwaffe officer given to him and that he had not been told the name.
He said further that if the Reich Marshal had actually wanted to find
out the name of this Luftwaffe officer, he could easily have done so.

    “Question 11: At the end of the war did the Luftwaffe ever
    receive orders to destroy Dachau Concentration Camp with bombs
    at the approach of the enemy? In particular, was an order to
    that effect given by the Gauleiter in Munich under the code word
    ‘Wolke’? Could a Gauleiter give such instructions to the
    Luftwaffe?”

Here again I can summarize the answer. The witness says,

“I do not recall any order to that effect,” and especially he does not
know whether the Gauleiter in Munich gave such an order. The Gauleiter
was not competent to give an order of this kind and he does not believe
that a senior officer of the Luftwaffe would have been willing to carry
out such an order.

    “Question 12: What do you know about the attitude of the Reich
    Marshal and his Luftwaffe to enemy airmen who had been shot
    down?

    “Answer: Notwithstanding occasional expressions of displeasure,
    the attitude of the Reich Marshal was always correct and
    chivalrous, which was in line with the Air Force tradition which
    he learned in the first World War and to which he frequently
    referred.

    “Of course, in his anxiety about the great difficulties of air
    defense and pressed by the Führer, perhaps on occasion he used
    harsh words. These words, however, were soon forgotten and I do
    not know of a single case where the Reich Marshal followed up
    these spontaneous utterances by incorrect or harsh measures or
    orders against members of foreign air forces. The conduct of the
    entire Luftwaffe was always correct and humane. To fight in a
    chivalrous manner was a matter of honor with the German airmen.
    To quote only a few examples of many: Although the enemy crews
    shot at German airmen who were parachuting to earth, and these
    practices were bitterly resented by our airmen and some...”

THE PRESIDENT: Well, Dr. Stahmer. Again, what you are now reading is all
comment; it is not statement of facts, it is comment and argument.

DR. STAHMER: Now Mr. President, he is coming to an example in which he
reports about those things.

THE PRESIDENT: Well, let us come to it.

DR. STAHMER: Yes. The sea rescue services of the Luftwaffe from the Bay
of Heligoland through the English Channel as far as Brest, in the Bay of
Biscay, in the Atlantic, and in the Mediterranean, was put into use for
the enemy in the same way as for the Germans. The rescue service fliers
and the rescue service boats made untiring efforts and showed exemplary
self-sacrifice in going to the rescue of friend and foe in distress.
Even when...

THE PRESIDENT: But, Dr. Stahmer, these were not particular instances.
These were not particular facts. They are just general statements which
are really comments and argument about the chivalry of the German Air
Force; that is all.

DR. STAHMER: Mr. President, by this he is trying to prove the chivalry
of the German Air Force.

THE PRESIDENT: But he does not prove it by making a general statement.

DR. STAHMER: No. Later on he comes—he will go on to say how many they
have rescued, how many of those were enemies and how many were their own
people. I believe these facts, Mr. President, are important when judging
the attitude of the Luftwaffe.

THE PRESIDENT: Dr. Stahmer, as I said just now, if you will get down to
the facts, if you have got the numbers, well then, no doubt that will be
a matter of fact.

DR. STAHMER: Of the thousands who were rescued from the sea by the
German Luftwaffe Rescue Service the great majority belonged to the
enemy—members of enemy air crews, crews of enemy ships. Without being
able to give exact figures at the moment, I would estimate—according to
my memory I would say that the proportion of enemy rescued was from 70
to 80 percent. And he continues:

    “If, when we went out to rescue our own people or to make
    reconnaissance flights for them or were engaged on other work,
    we saw that crews, also enemy crews, were in distress off the
    enemy coast or beyond the range of our own rescue services, we
    immediately signaled to the enemy and called upon him to go to
    the rescue.”

Then there are several questions put by the Prosecution. The first
question is: “What had Kaltenbrunner to do with...”

THE PRESIDENT: Dr. Stahmer, it is for the Prosecution to read their
questions if they want to read them.

DR. STAHMER: I am not interested in these questions, Mr. President.

SIR DAVID MAXWELL-FYFE: The Prosecution do not want the questions read.

THE PRESIDENT: The Tribunal will read them. Do you mean you want to put
them in—put them in evidence?

SIR DAVID MAXWELL-FYFE: We will put them in, but we do not want them
read.

THE PRESIDENT: Right.

DR. STAHMER: I have already stated that this is Exhibit Göring-55.

Then I have one more interrogatory, Mr. President.

THE PRESIDENT: Dr. Stahmer, you realize that the Tribunal proposes to
read all the evidence and therefore these interrogatories will be read
and considered even though they are not read now in open court. You have
offered them in evidence, so the Tribunal will be grateful if you will
cut short the reading of these affidavits and interrogatories as far as
possible.

DR. STAHMER: I shall proceed accordingly, Mr. President. Now, we turn to
the interrogatory of Hammerstein which I shall submit as Exhibit Number
Göring-52. Mr. President, this interrogatory is not at my disposal in
the original. I can only submit an attested copy. It has been submitted
to the Prosecution; it has been translated but it cannot be found at the
moment. But I assume I shall find the original very soon; I have advised
Sir David of this. The British Prosecution has already had it and this
document has been translated.

THE PRESIDENT: You mean the original has been mislaid or something.

DR. STAHMER: It has been mislaid, Mr. President, and I am unable to find
it at the moment. Anyhow, it has been submitted.

SIR DAVID MAXWELL-FYFE: My Lord, there is no objection to this
affidavit. I have a copy in front of me. It is general in its terms and,
if I may say so, I thought it would serve its purpose admirably if Dr.
Stahmer put it in and the Tribunal consider it in due course.

THE PRESIDENT: Yes.

DR. STAHMER: The original will be submitted in the next few days. It is
an interrogatory of the Judge Advocate of the Air Force, Dr. Von
Hammerstein. For several years he was the Supreme Judge of the Air Force
and in that capacity he reported once a month to the Defendant Göring.
Thus he was in a position to judge the attitude of Göring as supreme
legal authority and he now describes in detail how seriously the
Defendant Göring took his duties as supreme legal authority.

He further describes how the Reich Marshal Göring reserved to himself
the right to decide the more important matters; how he took great care
in dealing with all matters, how he insisted that the soldiers under his
command must maintain strict discipline. He particularly saw to it that
the soldiers under his command were punished most severely if they
committed illegal acts against the civilian population and especially
against the civilian population in the occupied countries.

Then he further describes how Reich Marshal Göring demanded severe
punishment particularly when it was a question of violating the honor of
women and how in the many decrees he always insisted that due respect to
the honor of women was the first duty of a soldier; how in serious cases
of rape, he always demanded the death penalty, no matter what the
nationality of the woman was. In two cases, for instance, he rescinded
the sentences because they were too lenient and he confirmed the
sentence only after the death penalty had been pronounced.

THE PRESIDENT: Well, surely, what you have said, Dr. Stahmer, has given
us the substance of the affidavit. You said that this man was the Judge
Advocate for the Air Force and that the law with reference to offenses
in the Air Force was strictly carried out. I am sure that is all you
want to say in summarizing it.

DR. STAHMER: Yes, Mr. President. What I wanted to bring out was that it
did not matter what the nationality of the woman involved was. In one
case against a Russian woman, he...

THE PRESIDENT: That is exactly what I have said, that the law was
strictly carried out. It is only an illustration of how the law was
strictly carried out.

DR. STAHMER: Very well, Mr. President, I have given the substance. I
shall dispense with all further explanation and submit this document.

THE PRESIDENT: Dr. Stahmer, the Tribunal thinks that their time is being
wasted, and unless Counsel for the Defense can do what the Tribunal
desires them to do, which is to offer these affidavits and
interrogatories in evidence, giving the shortest possible summary or
description of the affidavits or interrogatories, the Tribunal will have
to order that the interrogatories and affidavits shall be simply offered
in evidence, and they will hear no comment whatever on them.

The time is approaching immediately when the defense counsel are going,
to make their speeches, and if there is anything in these affidavits or
interrogatories of real importance, they will have the opportunity then
of commenting upon it. And also, the Tribunal itself proposes to read
not only the oral evidence, but the documentary evidence in this case.

DR. STAHMER: Then, Mr. President, I should like to submit this document
under Exhibit Number Göring-52.

THE PRESIDENT: Now then, the counsel for the Defendant Von Ribbentrop,
Dr. Horn, you have no affidavits or interrogatories to put in, have you,
that have been approved by the Tribunal?

DR. HORN: Mr. President, I ask to be permitted to submit four affidavits
to the Tribunal.

We are concerned here with the affidavit of Legation Counsellor Dr.
Eberhardt von Thadden. Legation Counsellor Von Thadden was in the
Information Office Number 14 of the Foreign Office, which was a branch
which dealt with the Jewish problem and with the co-ordination of
anti-Semitic propaganda in foreign countries with other German agencies.
It was...

THE PRESIDENT: Dr. Horn, have you applied for these documents?

DR. HORN: I applied to the General Secretary in writing and I asked that
these affidavits be accepted. This morning I received confirmation that
these affidavits had been given to the Prosecution and to the
Translation Division. Therefore, I beg to submit this document as
Exhibit Number Ribbentrop-319.

A further affidavit which I am submitting, and I have applied to the
General Secretary in writing for its acceptance, is the affidavit of Dr.
Werner Best, the former Reich plenipotentiary.

SIR DAVID MAXWELL-FYFE: I am sorry, but I was telling Dr. Horn that we
have not had copies of these yet; they have not reached us so far.

THE PRESIDENT: Well, I have before me a list of four affidavits,
Thadden, Best, Ribbentrop and Schulze, and it is stated that they are
not approved by the Tribunal. Therefore...

SIR DAVID MAXWELL-FYFE: My Lord, Dr. Horn mentioned them to me a day or
two ago and asked me whether I should object to their being translated,
and I said “no,” that I should not object to their being translated. Of
course, I have not had a chance to see them.

THE PRESIDENT: Would not the best course, as they have gone to the
Translation Division, be for them to be offered in evidence now, as I
understand Dr. Horn is intending to do, subject, of course, to any
question which may arise as to their admissibility?

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: Very well, if you will just give us the numbers then.

DR. HORN: The affidavit signed by Best I should like to submit as
Exhibit Ribbentrop-320. I should like to give a brief explanation of the
reason for this affidavit.

In cross-examination, my client was confronted with Document 2375-PS.
This document is an affidavit of a colonel of the Police, Dr. Rudolf
Mildner. A passage from this affidavit which dealt with the handling of
the Jewish question in Denmark was quoted to my client. I examined this
document and have ascertained that two documents bear the Number
2375-PS. One document is a statement made by Dr. Mildner which was not
made under oath. This statement which was not made under oath contained
that passage which was put to my client in cross-examination. Under the
same number there is an affidavit which has been sworn and is also by
Dr. Mildner. The passage about the attitude of Ribbentrop to the Jewish
question is not contained in this affidavit.

For this reason, I have got Dr. Best, who had been instructed by
Ribbentrop to handle the Jewish question and, according to Dr. Mildner,
did do so, to give this affidavit, Document Number Ribbentrop-320, which
I am now submitting to the Tribunal.

THE PRESIDENT: Very well.

DR. HORN: Apart from that my client was confronted in cross-examination
with a series of documents to which he could make only brief statements
as they were lengthy documents, most of which he had not seen before. I
should like to ask the Tribunal to permit me to submit a few brief
explanations on behalf of my client in the form of an affidavit, which I
shall call Exhibit Number Ribbentrop-321.

Then, I should like to be permitted to define my attitude on Document
TC-75. TC-75 represents a note sent by Ribbentrop to Hitler. This was
submitted by the Prosecution in a very abbreviated form. When I had this
document given to me in the original for the first time, the photo copy
tallied with the copy submitted by the Prosecution. When I had this same
document given to me a second time, I received a photostatic copy of
nine pages. In my final speech I should like to refer to this document.
Therefore, in order to save the Tribunal’s time I ask for permission to
submit this complete Document TC-75.

I have no further applications, Mr. President.

THE PRESIDENT: Dr. Horn, you did not give a number to that last
affidavit.

DR. HORN: TC-75 will become Exhibit Number Ribbentrop-322.

THE PRESIDENT: Very well.

DR. SIEMERS: Mr. President, with the permission of the Tribunal, I
should like to deal with those points of my examination which have not
yet been dealt with.

First of all we are concerned with the witness who has been allowed me
by the Tribunal, Generaladmiral Böhm. The Tribunal will recall that I
was permitted to examine this witness at the end of the presentation of
evidence. In the meantime, after consultation with Mr. Elwyn Jones and
Sir David, I have obtained an affidavit from Generaladmiral Böhm in
Hamburg, so that I could perhaps dispense with calling him as a witness.

I submitted this affidavit to Sir David and to Mr. Elwyn Jones and Mr.
Jones told me yesterday afternoon that Sir David agreed, and that he
would dispense with the cross-examination, and at the same time I agreed
not to insist on an examination, but to be satisfied with the submitting
and the reading of the affidavit. I believe Sir David agrees.

I should like to submit this affidavit of Generaladmiral Böhm’s as
Exhibit Number Raeder-129. This was sworn to on 13 June this year in the
presence of notary Dr. Sieveking at Hamburg.

THE PRESIDENT: It is not necessary to read it now, is it?

DR. SIEMERS: Mr. President, I should be very grateful if I might be
permitted to read this affidavit, as it deals with a portion of evidence
which is quite significant. The Tribunal will, I am sure, recall the
fact...

THE PRESIDENT: But I have already told you, Dr. Siemers—you can
certainly confine yourself to the really important part of it and
summarize anything that is really not so important. We cannot have all
these documents read out to us.

DR. SIEMERS: The Tribunal will agree with me that as far as my other
documents are concerned, I read remarkably little. My reason for wanting
to read a part of it was because the British Delegation, at the close of
the cross-examination, submitted two very lengthy summaries, GB-464 and
GB-465. These are summaries about the key documents of the 22d.

THE PRESIDENT: Dr. Siemers, surely you can tell us what the subject
matter of the affidavit is. We will then know the general subject matter
of it, and then I should have thought you could direct your attention to
the particular matters which are of special importance here. It only
takes up time if you are going to tell us what the Prosecution have
done.

DR. SIEMERS: I beg your pardon. Mr. President, if I have been
misunderstood. It was my intention to do that.

I shall not read from “I” of the affidavit. I shall only summarize it.
It is a discussion between Raeder and Generaladmiral Böhm in the summer
of 1939, on which occasion Böhm told Raeder that he was worried about
the political developments. He then asked Raeder whether he had called
Hitler’s attention to the great dangers and to the fact that the German
Navy would not be in a position to carry on a war at sea:

    “Grossadmiral Raeder replied to me”—and these are his
    words—“that he had put this up to Hitler more than once, and
    that he had concluded his exposition to Hitler with the
    fundamental sentence: ‘In such a case the Navy could not do
    anything but die gloriously.’”

Number II of the affidavit of Generaladmiral Böhm:

    “On 22 August 1939 Hitler made a speech to the top leaders of
    the Armed Forces at the Obersalzberg. I was present during the
    entire speech, which lasted 2 to 2½ hours. The speech was
    delivered in Hitler’s office.”

I am omitting the next few points and continue:

    “The speech”—which was submitted to the Tribunal as Exhibit
    Number Raeder-27—“has been set down by me with great accuracy,
    and I can state under oath that the speech was delivered in the
    way in which I have set it down. In particular I can confirm
    that my account contains all the important ideas and words.

    “The versions submitted by the Prosecution, Documents Number
    798-PS and 1014-PS, have been submitted to me by Dr. Siemers. I
    have now compared my version with these two versions.”

I am again skipping a paragraph.

    “I declare under oath that some of the expressions used in these
    documents were not used by Hitler at all, while others were used
    by Hitler partly in another sense and partly in another form.

    “As to Document 798-PS, the following numbers of the pages and
    lines agree with the version which I have just received, and
    which was submitted by Sir David Maxwell-Fyfe.”

I should like to remind the Tribunal that this is the 10-page summary,
GB-464. In this version you will find the sentence:

    “‘Afterward we shall discuss military details.’

    “Comment: This sentence was not used. Military details did not
    follow in 798-PS either.

    “Page 1, Lines 7 to 10: ‘I made this decision already in the
    spring, but I thought that first of all, in a few years’ time, I
    should turn against the West, and only afterward against the
    East.’

    “Comment: The account as set down by me, on Page 1, Lines 5 to
    8, is absolutely true. In any case Hitler never used the words
    that he would first of all turn against the West.

    “Page 1, Lines 12 to 14: ‘First of all I wanted to bring about
    satisfactory relations with Poland so that I could first of all
    fight against the West.’

    “Comment: This sentence was never used, and what I have just
    said applies here, too. Hitler never voiced the intention that
    he wanted to fight against the West.”

Now I shall omit the next point and on Lines 15 to 18 on Page 2 it says:

    “‘It is easy for us to make decisions. We have nothing to lose,
    only to gain. Our economic situation, due to our limited
    resources, is such that we can hold out only a few more years.’

    “Comment: As to the attitude taken here—the version in my
    statement, Page 2, Lines 21 to 26, is absolutely correct. Above
    all the sentence, ‘We have nothing...’”

THE PRESIDENT: Dr. Siemers, does it not come to this? There are two or
three versions of this particular speech and this admiral is saying that
his version is correct. That is all it comes to. I mean, he does not
think the other versions are correct. Well, the Tribunal will no doubt
have to compare the three versions and compare it with this affidavit.
But what is the purpose or use of reading it to us at this stage I do
not know.

DR. SIEMERS: Very well, Mr. President. Thank you very much. Then I ask
that the Tribunal take judicial notice of the further statements, as set
out therein. I should like to refer only to the fact that Generaladmiral
Böhm expressly asserts and declares under oath that the sentence which
has been quoted several times: “I am afraid that at the last moment some
dirty dog will submit to me a plan for mediation”——was not uttered by
Hitler.

Referring to Document 1014-PS, I should like to read a sentence which
has been brought up by the Prosecution six or seven times:

    “The destruction of Poland is in the foreground and the aim is
    the elimination of Polish vitality, not the reaching of a
    certain line.”

In this connection Böhm says:

    “There was never any talk of destroying Poland or of eliminating
    the vitality of the Polish people. What was discussed was the
    breaking of the military forces.”

And I should like the Tribunal to take judicial notice of these very
carefully set down statements for it seems to me that this is important
in assessing the evidence value of the documents presented by the
Prosecution.

Then under “III” Generaladmiral Böhm describes that period during which
he was commanding admiral in Norway. I should like the Tribunal to take
judicial notice of this. This statement chiefly concerns the struggle
carried on by Raeder and Böhm against Terboven, against the German
civilian administration, and the attempts to make peace with Norway.

Mr. President, after many weeks the interrogatory of Albrecht has
reached me in its final form. I sent it to the Translation Division
several days ago and have not yet received the translation. This
interrogatory has been approved and I put it in as Exhibit Number
Raeder-128. I ask the Tribunal to take judicial notice of this
interrogatory.

I should like to mention that Generaladmiral Albrecht was for many years
one of Raeder’s closest co-workers. He resigned in October 1939. He
knows the attitude taken by Raeder and he knows the High Command of the
Navy before 1933 and up to 1938. He, too, confirms the fact that Raeder
constantly warned Hitler of complications, and that Hitler always
stated, “I have matters under control and I will not let it come to
war.”

As regards all the other points, I ask, Mr. President, that the Tribunal
take judicial notice of these.

Then I should like to refer to the following: One interrogatory by
Generaladmiral Schulze has not yet come to hand. My efforts to obtain
this interrogatory date back to March 1946. I have given his address.
The witness is in retirement and lives in Hamburg-Blankenese.
Unfortunately until now the interrogatory has not arrived in Hamburg. I
should be very grateful to the Tribunal if it would give me permission
to submit this interrogatory at a later date, as I myself have no means
of expediting it. I do not know when it will come in, as in the meantime
it has been sent to Washington for reasons I do not understand, but I
certainly hope that it will be returned at some future date. Finally,
Mr. President...

THE PRESIDENT: Excuse me. What do you mean by it having been sent to
Washington? Did you say Washington?

DR. SIEMERS: I was informed by the General Secretary that this
interrogatory had been sent to Washington in order to locate the witness
there. But the witness resides in Hamburg-Blankenese. I am sorry that I
have no means of using my influence even though I have been trying for 3
months.

THE PRESIDENT: Well, no doubt the General Secretary is making every
effort to have the witness found. If he is found, then—what are the
dates? You say that 3 months ago you submitted this interrogatory? Was
it sent to Hamburg or where was it sent?

DR. SIEMERS: I have...

THE PRESIDENT: Surely, Dr. Siemers, you ought to know. You have been in
touch all these 3 months with the General Secretary and you are stating
that he sent it to Washington. You ought to know. Have you given him any
address in Hamburg? What is your complaint?

DR. SIEMERS: Mr. President, you have misunderstood. I was not
complaining. I was just stating the facts in order to show why the
interrogatory is not here, and I ask that when the interrogatory arrives
I may be permitted to submit it then, though by that time the
evidence...

THE PRESIDENT: I know you say that, but the Tribunal wants to know where
the interrogatory was first sent and why it was sent to Washington, and
why it was not sent to Hamburg and what you know about the fact—the
alleged fact—that the person who was to make the interrogatory was at
Hamburg?

DR. SIEMERS: Mr. President, I am from Hamburg myself and last November I
talked with the witness, and I gave his address when I put in my first
application to the General Secretary. Perhaps some misunderstanding
arose with the other offices which transmitted the interrogatory.
Perhaps they looked for a witness by the name of Schulze in some other
place. The name of the Generaladmiral is Otto Schulze and it is quite
possible that they looked up someone else with this rather common name.

The only answer I received was that the witness was being looked for, to
which I replied that it was not necessary to look for the witness.

MR. DODD: I think the Tribunal might be interested in knowing that Dr.
Siemers himself returned from Hamburg a few days ago, and I think he has
been there two or three times since he asked for this interrogatory.
Now, if he knows where this witness is, all he had to do while he was up
there was to go to a Military Government officer, submit his questions,
get them answered, and bring them back; and I think it is a little bit
unfair to blame the General Secretary under these circumstances.

DR. SIEMERS: I regret very much that Mr. Dodd considers it necessary to
reproach me with unfairness. I was told that an interrogatory could not
be given to the witness by me. The interrogatory for Admiral Albrecht I
brought back with me from Hamburg at the request of the General
Secretary because the formula of the oath had been omitted. In a case of
this kind I consider it quite natural that I should co-operate with the
General Secretary. However, I have submitted this interrogatory and I
cannot understand how Mr. Dodd could blame me if I have not brought the
interrogatory back with me.

THE PRESIDENT: Well, this seems to me a waste of time. We had better get
a report from the General Secretary.

DR. SIEMERS: Mr. President, I believe that I still have not been
understood. I am not accusing anyone. I am just asking for permission to
submit my interrogatory subsequently.

THE PRESIDENT: Well. We will consider that. We will not make any
decision until we have heard a report from the General Secretary upon
the circumstances.

DR. SIEMERS: Mr. President, then I should like to point out that two of
my applications were granted, which were not carried out completely. One
was the application concerning the files of the British Admiralty
containing the Allies’ plans regarding Scandinavia and Finland. Purely
as a matter of form I should like to say that the answer from the
Foreign Office, which is known to the Tribunal, is available, and the
Tribunal had approved the submission of these files, but the request was
turned down by the Foreign Office. As this matter has not been dealt
with before I should like it to be made absolutely clear.

THE PRESIDENT: The Tribunal, I think, has the communication from the
Foreign Office.

DR. SIEMERS: But I did not submit it, Mr. President. Therefore, I did
not know under what number, what exhibit number it can be found in the
files of the Tribunal. Would it be possible, Mr. President...

THE PRESIDENT: You can give it a number, certainly. Give it whatever
number you think right. What is the number you want?

DR. SIEMERS: May I submit this document as Exhibit Number Raeder-130
either this afternoon or at the latest tomorrow morning?

THE PRESIDENT: Yes.

DR. SIEMERS: Then, Mr. President, I made the request that the first
edition of Hitler’s book _Mein Kampf_ be placed at my disposal. In this
case as well, I should like to point out that according to information
received the General Secretary has made every effort, for which I am
grateful, but he has not been successful in providing me with this first
edition.

I should like to remind you of the fact that the edition used by the
Prosecution is from the year 1933 and therefore it cannot be used as a
basis for the argument put by the Prosecution concerning the period
before 1933.

THE PRESIDENT: That is a matter of argument.

DR. SIEMERS: Yes indeed.

During my absence four documents were submitted by Sir David
Maxwell-Fyfe. As far as I was able to ascertain, these documents, which
all come from Admiral Assmann, were submitted with the remark that
Admiral Assmann belonged to the Staff of Grossadmiral Raeder. This fact
was also mentioned several times in preceding records.

For the sake of order, I should like to clear up this error. Assmann was
in the historical section and he was in no way concerned with the staff
of Raeder. In this connection...

THE PRESIDENT: Have you got any evidence of the facts you are stating,
or do the Prosecution accept them?

SIR DAVID MAXWELL-FYFE: We accept, I am sure. My Lord, we have had it in
evidence and we accept the fact that he was in the Naval Historical
Section of the German Admiralty. My Lord, when I said “staff” I was
speaking generally. I did not mean the Operations Staff.

THE PRESIDENT: Then we need not waste further time about that.

DR. SIEMERS: I should like to refer to one point, Mr. President,
concerning these four documents: D-879, D-881, D-892, and D-854. I hope
that in this matter as well Sir David will agree with me. All the
English translations bear the heading “Diary”...

SIR DAVID MAXWELL-FYFE: My Lord, it is simply a point of how the
compilation of Admiral Assmann should be described. I am quite prepared
that it should be described as it is in the original.

THE PRESIDENT: Well...

SIR DAVID MAXWELL-FYFE: Dr. Siemers objected to its being described as a
“diary” and said that it should have been described as an index. My
Lord, I do not mind what it is described as.

THE PRESIDENT: What does it matter? Let us call it an index then. Is
that all your points?

DR. SIEMERS: Mr. President, this is important insofar as here in this
courtroom many “Tagebücher” have been submitted under the designation of
a “diary,” and these were really entries made at the time.

THE PRESIDENT: Sir David says that he will withdraw the word “diary” and
you may call it anything else you like. Really, it is only a waste of
our time to make this sort of technical point. Sir David agrees with
you, and he is prepared to withdraw the word “diary.”

DR. SIEMERS: Yes.

THE PRESIDENT: Very well then, let us not say anything more about it.

DR. SIEMERS: I quite agree, Mr. President.

Mr. President, I do not wish to take up the time of the Tribunal with
all the other and very numerous errors in translation. My final speech
will show how important this point was in connection with the Assmann
document. As suggested by the Tribunal I have brought the other errors
in translation to the notice of the General Secretary only.

THE PRESIDENT: If there are any errors in translation, that matter can
be taken up through the General Secretary with the Translation Division.

Dr. Siemers, it is very improper for counsel in your position to make
statements of that sort for which you have no proof at all. You know
perfectly well that when there have been any alleged mistranslations,
the matter has always been referred through the General Secretary to the
Translation Division and then they have been corrected; and for you to
get up at this stage of the Trial and say that there are many
mistranslations, without any proof of it at all, simply upon your own
word, is a most improper thing for counsel to do, and that is the view
of the Tribunal.

DR. SIEMERS: Mr. President, I beg to apologize, but I think I probably
did not express myself correctly. I am not making an accusation, but
with so many documents it is not surprising that these errors did occur.
I myself make mistakes. I am sorry if my remarks should have been
misunderstood.

THE PRESIDENT: Everybody makes mistakes, and everybody is capable of
having different opinions as to translations, but you and every other
member of the defendants’ counsel know that those mistakes, if they are
mistakes, will be corrected, if it is possible, and they know the way
that it can be done, and, therefore, as I said before, it is very
improper for you to get up and allege that there are a lot of
mistranslations. I do not want to hear anything more about it.

The Tribunal will adjourn.

                        [_A recess was taken._]

THE PRESIDENT: Dr. Nelte, have you any documents that you wish to offer
in evidence?

DR. NELTE: Mr. President, with a letter dated 1 July 1946, I put in
three affidavits, after having submitted them previously to the
Prosecution. Those three documents will become Documents Keitel-23,
Keitel-24, and Keitel-25. I beg the Tribunal to receive them, since the
Prosecution, as Sir David has told me, does not object to their being
offered in evidence.

THE PRESIDENT: And they are at present being translated, or have they
been translated?

DR. NELTE: They are in the process of being translated. I have merely
submitted the originals to the Tribunal.

THE PRESIDENT: Very well then, we will receive them in evidence and
consider them.

DR. NELTE: Thank you.

THE PRESIDENT: Dr. Kauffmann?

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): Mr. President,
I have a few interrogatories which have been granted to me by the
Tribunal. I have the originals here with me; they have been numbered,
and I should like to submit them. The Translation Division has informed
me that the translations are not yet at the disposal of the Tribunal,
but I assume they will be in the hands of the Tribunal in the next few
days.

THE PRESIDENT: Yes.

DR. KAUFFMANN: I should like to state, in a few short sentences, what
the contents of the documents are, if the Tribunal wishes me to do so.

There are three documents which refer to the same subject: The testimony
given by the President of the Red Cross at Geneva, Professor Burckhardt;
the testimony given by Dr. Bachmann, who was the delegate of the Red
Cross; and then there is Dr. Meyer’s testimony, and he too was an
official representative of the Red Cross.

In these documents these witnesses deal with the discussions during
March and April 1945 which they had with the Defendant Kaltenbrunner.
They also show that agreements were reached on the strength of these
discussions which made it possible for thousands of French, Belgian, and
Dutch women and children to be returned to their home countries.
Prisoners of war were also released under these agreements and internees
from concentration camps were allowed to return. Another result was that
Kaltenbrunner gave permission to visit the Jewish camp at Theresienstadt
and took pains that other camps received medical supplies, food, _et
cetera_.

All that is contained in detail in these three documents.

THE PRESIDENT: What numbers are you giving them?

DR. KAUFFMANN: The Professor Burckhardt document will be Number
Kaltenbrunner-3; Dr. Meyer and Dr. Bachmann, Numbers Kaltenbrunner-4 and
5.

THE PRESIDENT: Yes.

DR. KAUFFMANN: A further document is the interrogatory supplied by the
former Gauleiter in Upper Austria, Eigruber. That is Exhibit Number
Kaltenbrunner-6. Here again I should like to draw attention to one
point. Among other things, this witness states that the concentration
camp at Mauthausen was not set up by Kaltenbrunner, as has been alleged
by the Prosecution and that he was not responsible for the life there or
the presence of the internees at the camp. That is stated here in detail
and I do not propose to read it.

The next document is the interrogatory of Freiherr von Eberstein, which
is Number Kaltenbrunner-7. Again, I shall not read from it, but perhaps
I may say, in just one sentence, that this witness is testifying that he
knows that the concentration camp at Dachau and the two auxiliary camps
belonging to Dachau were not, as has been alleged by the Prosecution, to
be exterminated during the last months or weeks of the war, but that
such a plan had been contemplated exclusively by the Gauleiter of
Munich, Giessler.

Then there is a further interrogatory, which is the testimony of the
witness Wanneck. That will be Exhibit Kaltenbrunner-8. I should like to
draw the attention of the Tribunal particularly to this document. It is
a lengthy document, and I shall not read from it. However, I believe I
can say that this man was particularly well acquainted with the
defendant and the whole of his official activities in the course of many
years. This witness held for years a leading position in the Foreign
Intelligence Service. He knows Kaltenbrunner’s attitude regarding the
executive and he confirms the fact that Kaltenbrunner agreed with
Himmler at the time, that he, Himmler, would retain the executive powers
while Kaltenbrunner would work mostly in the sector of the Intelligence
Service as a whole.

Finally, Mr. President, there are two documents which have not yet been
discussed. Therefore, first of all, the Tribunal would have to decide as
to the relevancy of the documents, and as to whether I shall be entitled
to submit the documents. They are two short letters which I have
received.

One is a letter from the mayor of the town of Dachau, dated 4 April
1946. The Tribunal may possibly remember that during the taking of
evidence by the Prosecution it was frequently mentioned that the
population in the vicinity had knowledge of the abuses. This man, who
has now been instated by the American authorities, confirms his own
experiences. In my opinion they do not bear out the thesis of the
Prosecution.

Immediately connected with this is the second letter, which is from the
well-known Pastor Niemöller, and which is dated 17 April 1946. Niemöller
had spent some time in Dachau.

MR. DODD: Mr. President, would it not be best if we were heard on the
first affidavit before the Niemöller affidavit is taken up?

We have objected to this affidavit by the mayor of Dachau for the reason
that it is simply a letter. We have had no opportunity to file any
cross-questions or to ask any questions of the man at all. These letters
come in here. If we are going to submit all the letters that come in—we
have bales of them, actually.

We do not like to object on purely technical grounds, if there is
anything here that would really be helpful to the Tribunal. On the other
hand, we do not feel that we should deny ourselves the opportunity to
make clear the entire story by cross-questions of some kind.

THE PRESIDENT: That is with reference to Schwalber?

MR. DODD: Yes, Sir.

DR. KAUFFMANN: I did not quite understand what you said, Mr. President.

THE PRESIDENT: What Mr. Dodd said was that they objected to this
document from Schwalber because they have not had any opportunity to put
any questions to him, either by way of having him called as a witness or
by a cross-interrogatory. Therefore, they object to the introduction of
the document in its present form.

DR. KAUFFMANN: Yes, I understand. I know this is somewhat problematical,
but the Tribunal will be able to assess the evidence value of the
letters according to their own opinion. Perhaps I may submit these two
short documents to the Tribunal. So far as I know, the Prosecution is
acquainted with these two documents, because they have been in the
Translation Division, and some time ago a representative of the
Prosecution told me that very probably objections would be raised. That
was why, at the beginning, I told the Tribunal it would first have to
decide as to the relevancy of the documents.

THE PRESIDENT: Well, Dr. Kauffmann, the best way will be for the
Tribunal to read the document and to consider it. We will do that.

DR. KAUFFMANN: Very well, Mr. President. Thank you.

MR. DODD: I should also like to indicate to the Tribunal that we take
the same position with respect to the Niemöller letter.

THE PRESIDENT: You consider them both, then? You are objecting also to
the Niemöller letter?

MR. DODD: Yes, on the same grounds.

THE PRESIDENT: Yes, very well.

DR. OTTO PANNENBECKER (Counsel for Defendant Frick): Mr. President, the
reply to the Messersmith interrogatory has not yet been submitted. The
reply has been received in the meantime, and has been translated, too. I
believe, however, that the Tribunal has probably not yet received it.

THE PRESIDENT: Can you offer it in evidence and give it a number?

DR. PANNENBECKER: Yes, Sir; I was going to. But I did not expect that it
would come up today, and I have not the number which I shall give to the
exhibit. May I be permitted to furnish the number later? Yes—I have it
here, Mr. President, and I shall now submit it as Exhibit Number
Frick-14. This is the reply to an interrogatory. The replies are in the
same form as those which Mr. Messersmith gave in the interrogatories
concerning other defendants. I shall refer to this interrogatory in
detail during my final speech. Therefore I need not read it now.

Then there is still one reply outstanding in an interrogatory of Konrad,
and I beg to be permitted to submit it as soon as I receive it.

THE PRESIDENT: That has been granted, has it? And it is now before the
witness?

DR. PANNENBECKER: Yes.

THE PRESIDENT: Very well.

DR. PANNENBECKER: Thank you.

THE PRESIDENT: Dr. Servatius.

DR. ROBERT SERVATIUS (Counsel for Defendant Sauckel): Mr. President,
several interrogatories have still to be submitted. First of all, I
submit Exhibit Number Sauckel-15 to the Tribunal. That is a Darré
interrogatory.

THE PRESIDENT: Whose interrogatory was that? Whose interrogatory?

DR. SERVATIUS: Darré, the Minister for Food and Agriculture. This
interrogatory deals with matters which have in part already come up at
this Trial. I should like to draw your attention to a few points. There
is the question of what was Sauckel’s general attitude, particularly
toward Himmler’s views; and the witness stresses the fact there was
considerable controversy between Himmler and Sauckel in this respect. He
mentions one particular instance which he himself witnessed. He speaks
about a factory in Thuringia which was directly under Sauckel’s control
and says that the workers there were so free that they hired themselves
out to farmers during the day, which was rather too much of a good
thing. He then talked about a clash between Sauckel and Himmler in the
presence of the Führer about the question of treatment, and he says that
Himmler stated, “I am subordinate to the Führer only, and for my
official business I am under the Reich Marshal; and I do not have to
justify myself to you.”

Then there is an interrogatory from Minister of Labor Seldte, which has
been allowed by the Tribunal and which I shall submit as Exhibit Number
Sauckel-16. I should like to bring out just a few points. The witness
talks about Sauckel’s functions and the functions of Dr. Ley, and he
says that Sauckel carried out the functions of the state while Ley
looked after the social welfare and social supervision.

Then he goes on to talk about inspections and control, and he says that
the offices for accident insurance, health, and factory inspection were
in existence before and had continued to function under the
responsibility of the Ministry of Labor.

Then comes the interrogatory of Dr. Voss, which I submit as Exhibit
Number Sauckel-17. I shall submit the original later. I am afraid I
cannot find it at the moment. This doctor was medical officer in a camp,
and he speaks of the conditions in the camps, particularly after air
attacks, and about the activities and care of the Labor Front. He not
only deals with the camps in which he was working but he knows a great
deal generally about conditions in other camps.

His statement is in contradiction to the testimony given by Dr. Jäger.
In the same way the following document, which I shall submit as Exhibit
Number Sauckel-18 and which comes from Dr. Ludwig Scharmann, although
dealing with another sector, contains similar statements, too, which are
also in direct contrast to the testimony given by Dr. Jäger.

That completes the interrogatories which have been granted me. Now I
have still another number of documents for which I have applied, but on
which a decision has not yet been given. I do not know whether I should
now submit them to the Tribunal. They are mostly concerned with laws and
decrees and I would like to submit them in addition to what I have
already submitted.

THE PRESIDENT: Yes, Dr. Servatius, the Tribunal would like you to submit
them now, because the Tribunal wishes to deal with the evidence on
behalf of the Defense finally, now and today.

DR. SERVATIUS: There is a decree by Sauckel dealing with the return of
sick foreign workers to their homes. It shows that workers who had
fallen sick were sent back and that Red Cross employees had to accompany
them. The actual decree is in the official collection of laws and
decrees which has already been submitted. I shall ascertain my exhibit
number presently. It will be Number Sauckel-99 in the supplementary
document book.

Then there is Document Number Sauckel-100, which comes from the
_Reichsarbeitsblatt_, 1943, which has already been offered in evidence,
too. This deals with the investigation of sanitary measures in camps,
and it concerns the accusations which have been made with reference to
these accommodation problems.

Then there is Document Number Sauckel-101 which is a memorandum for
French prisoners of war on leave regarding their improved status under
the so-called “transformation.” I shall submit it and give the exhibit a
number. For the moment it is Document Number Sauckel-101.

Then come Documents 102 and 103. Both are laws contained in the official
_Reichsgesetzblatt_. They are “German Instructions Regarding Compulsory
Labor Service.” It is the Emergency Services Order which I submit as
Document Number Sauckel-102. Then there is the Compulsory Labor Decree
which will be Document Number Sauckel-103, in the supplement.

Then I find that Document 4006-PS contains a number of important
regulations, but I am told that the Prosecution is going to read them,
and therefore I assume that I need not do so.

Then I have received an affidavit from Count Spreti, who, from the
beginning of the Eastern campaign, was active as a recruiting officer in
the East. It deals with conditions, and it states particularly that
Sauckel’s activity had brought about a basic change in the general
attitude. It is short and I consider that it is of particular
importance, because up to now no recruiting officer has been heard on
the subject.

Then I was proposing to submit Document Number Sauckel-109, which will
be a list...

COL. PHILLIMORE: My Lord, with regard to that affidavit I am told, the
Prosecution having not seen it at all, that that should be accepted with
the same reservations as have been made in the previous cases.

THE PRESIDENT: Yes, certainly. Was that affidavit you spoke of by Count
von Spreti, S-p-r-e-t-i?

DR. SERVATIUS: Yes.

COL. PHILLIMORE: Yes, My Lord.

DR. SERVATIUS: Then I was going to submit a list of all of Sauckel’s
decrees as Document Number Sauckel-109 which will give an idea of the
great care he took of all kinds of matters. This list will give the
titles only.

THE PRESIDENT: Very well, you did not give a number to the affidavit of
Count von Spreti.

DR. SERVATIUS: It will be given Number Sauckel-108 in my document book
and then I shall give it an exhibit number later when I submit the
numbers for the other documents.

Then as Document Number Sauckel-110, 111, and 112...

THE PRESIDENT: Dr. Servatius, are you not giving us exhibit numbers now?

DR. SERVATIUS: I cannot do so at the moment because I have not got the
originals with me and part of these are official records which have been
submitted already.

THE PRESIDENT: But you see in the case of the Defendant Sauckel, as in
the case of every other defendant, the exhibits put in on his behalf,
the exhibits offered in evidence on his behalf should have a consecutive
series of numbers and that is a consecutive series which is settled by
the counsel himself who offers the documents in evidence. It does not
depend upon whether he has the original before him.

DR. SERVATIUS: In that case I can give them exhibit numbers. Document
Number-108 will be Exhibit Number Sauckel-18.

THE PRESIDENT: Which is that?

DR. SERVATIUS: Exhibit Number 18.

THE PRESIDENT: Perhaps the most convenient way would be if you would
carefully go through your exhibits and give the list to the General
Secretary, giving the exact exhibit number of each document.

DR. SERVATIUS: Very well.

Then Documents Number 110, 111, and 112, contained in the supplement,
are three laws which deal with the position of the Reich Defense
Commissioner who was mentioned in connection with the allocation of
labor. The Reich Defense Commissioner is, of course, the Gauleiter who
was mentioned during the case of Speer in connection with the armament
industry. These are merely the basic laws, so as to have them at hand.

After the case of Speer had been heard, I received an affidavit from the
witnesses Hildebrandt and Stothfang, who had been examined here in
Court. It deals with the question of how far Sauckel had to obey Speer’s
instructions and what the relations were between the two offices. The
Prosecution have not yet defined their attitude and I think perhaps it
would be best if...

MR. DODD: We will be glad to have this affidavit submitted, Mr.
President. We have no objection whatever to it. As a matter of fact, if
it was not submitted by Dr. Servatius, we intended to offer it
ourselves.

THE PRESIDENT: Very well. Of course the Tribunal thinks it is irregular,
really, that a witness who has been called and has given evidence, has
been cross-examined—has been re-examined and cross-examined by any
other counsel for the defense who want to—that he should be entitled to
give any other evidence, but if you are both agreed that it is
convenient in this case, as a special circumstance, we will admit it.

MR. DODD: I think—Mr. President, I, of course, recognize at once the
Court’s observation about submitting affidavits of witnesses who have
been before the Tribunal. What happened here was that some rather
material matters were not gone into when he was here, and I think the
Tribunal will find them quite helpful in clearing up the situation about
Sauckel and Speer with respect to their relative and individual
responsibilities for this slave labor program. Other than that, I, of
course, would not urge it at all. I think the Court will find it
helpful.

DR. HANS FLÄCHSNER (Counsel for Defendant Speer): Mr. President, I would
not make a formal objection against the admission of such an affidavit
if I were not convinced, in this particular case, that with the
admission of such an affidavit a series of questions will be opened up
which will, in turn, necessitate further arguments. I saw the wording of
this affidavit only this morning and I am convinced that at least
further investigation of its contents will be necessary. I believe,
therefore, that if this Trial is to be shortened, in the case before us
as well, one ought not to depart from the general rule that affidavits
from witnesses who have already appeared before the Tribunal should not
be permitted. In this particular case, where there are references to the
publication with which the affidavit deals, the case could be made quite
clear if these publications were submitted and, therefore, the affidavit
is not at all necessary.

THE PRESIDENT: Do you wish to say anything in answer to that objection?

DR. SERVATIUS: Mr. President, this affidavit is, in fact, a
supplementation of the instructions contained in Document 4006, which
the Prosecution is proposing to submit; but I did not know that this was
proposed. What we are actually concerned with here is a question which
was opened up by Speer’s examination, namely, the significance of
Speer’s Ministry as compared to Sauckel’s office: Who, of the two, was
the more powerful? Who could give orders? Who had to obey? I think the
documents will make that clear.

THE PRESIDENT: Yes, but you and the Prosecution had the opportunity of
cross-examining Speer when he was in the witness box and you could then
have elucidated anything you wanted to elucidate at that time.

DR. SERVATIUS: Yes, only the circumstances were not known to me at that
moment.

MR. DODD: Mr. President, I do not wish to press this at all, and if the
Tribunal has any doubt about it at all I will withdraw my position. I
thought it might be helpful, but it really is not important and if there
is any question I think it is better we let it go.

THE PRESIDENT: Well, the Tribunal think it is irregular to introduce new
evidence by affidavits from a person who has already been called as a
witness, and in view of the objection on behalf of the Defendant Speer,
they cannot accept the evidence.

DR. SERVATIUS: In that case, I will withdraw it. That completes my
statement of evidence. The only thing that is still outstanding is the
witness Letsch’s interrogatory, which has been granted, and the
interrogatory of the witness Bichenbach. I have no hope of still
receiving them.

THE PRESIDENT: Dr. Steinbauer?

DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): Mr.
President, I have four documents which I beg to submit and which I have
received through the General Secretary. The Tribunal has allowed them
and the Prosecution know of them. Unfortunately, however, the
translations have not yet been completed.

The first document contains questions and answers from Director Dirk
Hannema, director of the Bovymans Museum in Rotterdam, about the alleged
plundering of art treasures. I shall give this document the Number
Seyss-Inquart-108. I shall submit the English text and the Dutch
original.

The next document is an edition of the newspaper _Nieuwe Rotterdamsche
Courant_, dated 17 May 1942, of which I have the original and a German
translation. It contains a warning regarding the shooting of hostages.
This document I shall submit in the original under Document Number
Seyss-Inquart-109.

The following document is also an edition of the same newspaper; it is
dated 10 August 1942, and it also contains an announcement regarding the
shooting of hostages. In connection with this document I should like to
draw your attention to the fact that this announcement was the result of
an order from the Military Commander in Holland, General Christiansen,
and that the Senior SS and Police Leader, Rauter, signed it. I shall
give it Document Number Seyss-Inquart-110.

The next document I received only yesterday from the General
Secretariat, and it is a copy of the interrogatory of General of the
Cavalry Von Kleffel. From 27 March 1945 until 8 April 1945, he was
Deputy Commander-in-Chief of the 25th Army in Holland. He confirms that
Reich Commissioner Seyss-Inquart, in a letter to the Führer, had
requested that the fighting should cease, in order to save the country
from being heavily damaged and also to prevent a famine. This document
is Number Seyss-Inquart-111 in my document book. This document had been
allowed by the Tribunal. I beg, therefore, that it be received in
evidence.

Today the General Secretary’s office sent me two affidavits. One comes
from the former commander of the Defense District of Scheveningen. His
name is Erwin Tschoppe. He is submitting an affidavit dealing with the
attitude and conduct of the defendant with respect to the evacuation of
the coastal area. Because of the short time at my disposal, I have not
yet been able to hand this document and the following one to the
Prosecution, but I have already informed the Prosecution that these two
documents exist. The second document is also...

THE PRESIDENT: Dr. Steinbauer, these documents, I apprehend, have not
been shown to the Prosecution?

DR. STEINBAUER: No.

THE PRESIDENT: Wait a minute; they have not been approved by the
Tribunal and one question that arises is: Are they very long? Because I
find that the Translation Division is being overloaded with very long
documents.

DR. STEINBAUER: No, it is a short document, but it appears to me to be
important, because it shows how the defendant acted during that
difficult situation and how he took care of the Dutch population.

THE PRESIDENT: If it is short and if you will submit it to the
Prosecution, then it can be translated and admitted subject to any
objection.

DR. STEINBAUER: Yes, Sir. The same applies to the following document
which I also received today. It is an affidavit of Adalbert Joppich. He
was President of the German Supreme Court in the Netherlands, and he
makes a very brief statement about the position and the attitude of the
defendant with regard to legal questions affecting the Dutch civilian
population. I beg that this document should also be admitted in evidence
and that I may use the same procedure of submitting a copy of the
translation to the Prosecution.

THE PRESIDENT: What number did you give?

DR. STEINBAUER: The Tschoppe document will be Document Number
Seyss-Inquart-112 and the Adalbert Joppich document will be Document
Number Seyss-Inquart-113. Documents allowed by the Tribunal and still
outstanding are affidavits by Bolle, Dr. Reuter, Völkers, and
Lindhorst-Homan. The General Secretariat and I are trying to obtain
these affidavits. So far it has only been possible to ascertain Bolle’s
address. Finally, I request that two applications which I have made in
writing should be granted; one concerns the obtaining of the defendant’s
NSDAP membership card which was impounded when he was arrested, and
which must be among his personal documents in the custody of the
Tribunal. A few months ago I made a request to that effect, but both
sides apparently lost sight of the matter.

THE PRESIDENT: Of course, you do not mean that it is in the custody of
the Tribunal; you may mean that it is in the custody of the military
authorities.

DR. STEINBAUER: Yes. I meant the prison administration.

THE PRESIDENT: Well, no doubt, they can reproduce it. What was the other
document?

DR. STEINBAUER: Well, Mr. President, then in the cross-examination...

COL. PHILLIMORE: My Lord, I do not want to take up Your Lordship’s time,
but that membership card, that could have been applied for months ago.
It is on the same footing as these documents which counsel has been
putting in. We have not seen them. I do not know what this card is going
to prove, but it is going to be a great deal of trouble to get it here,
just as these documents are giving a great deal of work to the
Translation Division.

THE PRESIDENT: What is the importance of the membership card? Presumably
he knows when he became a member. What relevance does the card have to
this?

DR. STEINBAUER: It is of importance because according to the war crime
law which has now been published in Austria, all members having a
membership number above 6,500,000 will not be regarded as so-called “old
fighters” or illegals. Seyss-Inquart has stated in the witness box...

THE PRESIDENT: That has nothing to do with the Tribunal. It may be
relevant in some other proceeding and before some other court but not
before this Court.

DR. STEINBAUER: Only insofar as the Prosecution had alleged that he had
been a member of the NSDAP since 1931. But, of course, I am not trying
to make difficulties. I only thought that the membership card might be
among the belongings which were taken away from the prisoner and that
one could have a look at it.

THE PRESIDENT: Yes. But did he deny that he was a member since 1931?

DR. STEINBAUER: Yes, oh, yes. He states that he did not become a member
until 13 March 1938—formally.

THE PRESIDENT: Oh, yes, formally; I remember, yes. But he had been a
member of the Austrian Nazi Party very much longer, if I remember
rightly.

MR. DODD: We will agree here and now, Mr. President, that that card
would show that he became a member, as far as the card is concerned, on
that date. I am sure that is what it will show and if it will help the
doctor, we will be glad to agree to that.

THE PRESIDENT: Very well.

DR. STEINBAUER: The last document for which I am applying is the
following: During cross-examination a document was submitted in which an
18 year-old female police clerk named Hildegard Kunze confirms that my
client caused Dutch Jews to be sterilized. Seyss-Inquart maintains that
he has never written to the Police directly, but that in three personal
letters addressed directly to Himmler, he did object to the treatment of
Jews, and that in one of his letters he mentioned sterilization. This,
presumably, was the reason why the witness mentioned it and probably she
gained knowledge of these facts because Himmler sent the original or
copy of the letters to the Main Security Office. In connection with this
important matter my client has requested me to make an attempt to have
these letters which he wrote to Himmler produced in order to disprove
the incriminating statement made by the witness Hildegard Kunze. I do
not conceal the fact that it will probably be difficult to find these
letters among the very many documents of the Main Security Office.

THE PRESIDENT: Have you made your application in writing about this?

DR. STEINBAUER: Yes, I have made a written application.

THE PRESIDENT: Giving the dates when the letters were written?

DR. STEINBAUER: Yes, everything I could ascertain regarding the dates
and the addresses is contained in my application.

THE PRESIDENT: Well, the Tribunal will consider that, but you understand
that the work involved in this sort of thing is very great indeed.

DR. STEINBAUER: Mr. President, far be it from me to underestimate the
difficulties which are connected with my application. Apart from this, I
have no further application to make.

THE PRESIDENT: We will adjourn now.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

THE PRESIDENT: The Tribunal will not sit in open session Saturday next,
nor will it sit in open session on any Saturday in the future unless it
gives notice that it is going to do so.

Yes, Dr. Thoma?

DR. THOMA: Mr. President, yesterday I mentioned an affidavit of Dr.
Heinz Oeppert, Reichshauptstellenleiter. I have now received this
affidavit, and I have also already conferred with Mr. Dodd about it.

I now beg the permission of the High Tribunal to submit this affidavit.
Mr. Dodd has no objections to the submission of this affidavit.

May I read a very brief passage from this affidavit, Mr. President?

THE PRESIDENT: Can you tell us what the affidavit is about?

DR. THOMA: Yes, Mr. President. This Dr. Oeppert had the Office of
Ideological Enlightenment in the office of the Führer’s deputy for the
supervision of the entire ideological and intellectual framing of the
Party. Concerning this activity and this office he testified that it
involved almost exclusively a reporting and registration of events in
this sphere.

Any active interference in the church policy of the State or the Party
would not have been possible even if they had wished it, for this office
had no executive facilities of any kind. There were constantly very
intense differences with the State and Party organizations which
participated in this sphere of activity, that is, between the Propaganda
Ministry and the Church and the SD and Party Chancellery. The
suppression of certain ideological groups and sects as well as the
measures taken against individual clergymen, as far as I know, were
taken by the SD or the Gestapo without the knowledge or authority of
this office.

I am asking the High Tribunal to take judicial notice of this document.

THE PRESIDENT: Very well.

DR. THOMA: Exhibit Number Rosenberg-51.

THE PRESIDENT: Dr. Fritz. On behalf of Fritzsche—is anyone representing
Dr. Fritz?

DR. ALFRED SCHILF (Counsel for Defendant Fritzsche): Dr. Schilf for Dr.
Fritz, who is absent, representing the Defendant Fritzsche.

Mr. President, Dr. Fritz applied in writing last Monday concerning two
affidavits which are still outstanding, one an affidavit by the
journalist—the English journalist, Clifton Delmar—and the other an
affidavit by His Excellency Feldscher, then Minister of the protective
power in Berlin, now in Berne. Neither of these affidavits has arrived
yet, and we are asking the High Tribunal if we may submit and be allowed
these documents later.

I have no further comments. No other applications have been made.

THE PRESIDENT: Have you—I did not hear the name of the second one. Was
it Feldscher?

DR. SCHILF: Excellency Feldscher, Minister of the protective power. He
is now at Berne in Switzerland.

THE PRESIDENT: Have these affidavits been placed before the Prosecution?

DR. SCHILF: No, Mr. President, they are not yet available. They have not
arrived yet.

THE PRESIDENT: I see. Are they affidavits or interrogatories?

DR. SCHILF: They are two interrogatories, Mr. President.

THE PRESIDENT: Interrogatories, I see. Well then, when the
interrogatories come back answered, they can be shown to the Prosecution
if they want to put in cross-interrogatories; and then they can be
translated and submitted to the Tribunal.

Dr. Schilf, there was an application—I am not sure whether it was in
writing or whether it was only oral—with reference to Schörner and
Voss, and one other man, whose statements were used in cross-examination
by the Prosecution. I think they were affidavits, I am not sure; and
there was an oral application, I think, to cross-examine those persons.
Do you want that to be done, or have you withdrawn that?

DR. SCHILF: Mr. President, that application has not been withdrawn, but
it was put in only as an auxiliary application, to have effect only if
the interrogation notes submitted by the Russian Prosecution—it seems
to me that these interrogation notes cannot be considered as affidavits,
but only interrogation records of a police character.

And Dr. Fritz made application to the effect that if these three
documents were to be used as documents of evidence, we cannot waive the
cross-examination. These three documents were used in the examination of
the Defendant Fritzsche only in part, and only short passages were
submitted to the defendant in his examination. Every detail there he
has...

THE PRESIDENT: What you were saying is that in case the Prosecution do
not want to use the whole of these documents, but only the parts which
were put to the Defendant Fritzsche in the course of cross-examination,
then you do not need to have those persons, Voss and Schörner, called
for cross-examination; but if the Prosecution wish to put in the whole
document, then you want to cross-examine them. Is that right?

DR. SCHILF: Mr. President, that is correct.

THE PRESIDENT: Are you meaning that you are asking the Tribunal to
strike out the passages in the Defendant Fritzsche’s evidence which deal
with these statements or are you merely meaning that if the Prosecution
wish to use, not only the parts which they have put to the defendant in
cross-examination but other parts of the document, that in that event
you would like to cross-examine the deponents Voss and Schörner?

DR. SCHILF: Mr. President, we only want the cross-examination to take
place in case the Court should regard the three interrogation records,
as a whole, as documentary evidence.

THE PRESIDENT: Yes, then you do mean what I first of all put to you.

Well, perhaps the Prosecution, General Rudenko, would tell us whether he
is wanting to put in the whole document or whether he has put enough of
it in.

GEN. RUDENKO: Mr. President, as I have already stated to the Tribunal,
when these written statements were submitted, the records of the
interrogations were written down in agreement with the rules of
procedure which is in existence in the Soviet Union. The Prosecution
will only use those parts which were read here before the Tribunal and
on which the Defendant Fritzsche was cross-examined.

THE PRESIDENT: Very well, then it is not necessary to have those
witnesses brought here for cross-examination. Very well.

DR. SCHILF: Yes, indeed, Mr. President.

THE PRESIDENT: Then that brings the Tribunal to the end of the evidence
for the Defense, with the exception of two witnesses who are to be—who
are here and to be called on behalf of the Defendant Bormann.

DR. FLÄCHSNER: Mr. President, on behalf of the Defendant Speer may I
submit in addition a document which has already been translated and is
known to the Prosecution. This is the Führer protocol of 3 January 1943.
This shall have the Document Number Speer-35. I had already listed it as
Exhibit Number 35 in the index of the documents submitted by me which I
gave the Court. Only at that time it had not yet been translated. I
should like to submit it now.

THE PRESIDENT: Yes, certainly.

What I wanted to say was that that concludes the whole of the evidence
on behalf of the defendants with the exception of interrogatories which
have already been granted, the answers to which have not yet been
received. Of course, those interrogatories, subject to their being
admissible, will be admitted when the answers are received and that
applies also to anything in the shape of an affidavit which has been
allowed by the Tribunal; but otherwise the evidence for the defendants
is now closed with the exception of Dr. Bergold.

DR. SERVATIUS: Mr. President, I have another question regarding the
appearance for testimony of the witness Walkenhorst. In case he is not
called as a witness, I have an affidavit at my disposal, which I have
received; and I assume that I may submit this in case this witness is
not examined here before the Court. It deals with a very brief question,
namely, the telephone conversation which Sauckel had regarding the
evacuation of the Buchenwald Concentration Camp. Walkenhorst happened to
be the man at the other end of the wire. I have an affidavit on this one
question.

Of course, if the witness is being questioned here in Court I shall ask
him; but in case he is not examined I request that this be held open.

THE PRESIDENT: You are speaking of Walkenhorst?

DR. SERVATIUS: Yes, the witness Walkenhorst.

THE PRESIDENT: Well, he is just going to be examined now.

DR. SERVATIUS: I hope so, Mr. President.

THE PRESIDENT: But—I believe he is here.

I have before me a list of supplementary applications but I think that
they have all been dealt with in the discussion which we have had during
the last 2 days. And if there is any other matter which the defendants’
counsel wish to raise they should raise it now.

Well then, I take it then, that as I said, the evidence for the Defense
is now concluded, subject to the reception of documents which I may
describe as outstanding, either interrogatories or affidavits.

DR. MARX: Mr. President, may I be permitted, please, to introduce three
more documents with the permission of the Tribunal. They concern the
following questions:

When considering what influence the paper published by Streicher
exercised on the German population, it is of decisive importance to know
how the circulation of this paper developed and to what circumstances
the fact is to be attributed that, within a certain period of time,
there was a marked increase in its circulation.

I set myself the task of determining from the mastheads of the weekly
paper, _Der Stürmer_, how its circulation developed.

THE PRESIDENT: But—we have already dealt with this application. We have
had the application before us and we have considered it and we have
refused it.

DR. MARX: Yes, I beg your pardon, Mr. President; it concerns the
following:

Quite by accident, when looking at various issues of this newspaper, I
ascertained that in the year 1935 a marked jump in circulation took
place and the Defense would like to prove that this increase is not to
be traced to an increased demand by the German people but rather to the
fact that high Party offices exercised their influence and, together
with a new publishing management, brought about a threefold increase.
Naturally, it is of essential significance whether a threefold increase
results from a demand by the people or whether, as in this case, the
German Labor Front intervened in the person of Dr. Ley, and a special
publicity number was published, which was then circulated by Dr. Ley’s
efforts and by using the huge machinery of the German Labor Front.

That is something I want to prove and I am of the opinion that it is of
importance to the Defense.

I have three documents along these lines, Mr. President; and with the
permission of the Tribunal I shall read a directive, and I ask that I be
allowed to introduce it as evidence. From this it appears that Dr. Ley
as the leader of the German Labor Front, gave the order to all the
offices of the German Labor Front to circulate this special edition and
to see to it that it was widely circulated in the factories, and so
forth. For, indeed, it is one of the essential points of the Indictment
that the German people were influenced against the Jews by _Der Stürmer_
and by the Defendant Streicher, and thereby later made ripe to support
the measures in the East, even to the extent of mass extermination.

Therefore, I ask that this evidence be admitted and that it be declared
relevant.

THE PRESIDENT: You said you have got three documents. The first one is a
directive from Ley?

DR. MARX: Yes, Mr. President.

THE PRESIDENT: Yes. What are the other two?

DR. MARX: One is an excerpt from the newspaper _Der Stürmer_ in May
1935, Number 18, which reads as follows:

    “Bernhardt, who fled from Berlin to France, writes in the
    _Pariser Tageblatt_ (Paris, 29 March 1935) under the heading,
    _‘Stürmer_ Circulation Increases Threefold,’ as follows:

    “‘The support which the pornographer Streicher received from the
    highest offices of the Reich in circulating his _Stürmer_ helped
    him to triple his circulation within less than a year...’”

THE PRESIDENT: Wait. You have already told us that the circulation of
the Stürmer went up threefold. It is not necessary to repeat it all
again. We only want to know what the documents are. The first one is a
directive of Ley. The second one is an issue of _Der Stürmer_. What is
the third one?

DR. MARX: And the third—the third is a summary of the circulation from
January 1935 until the middle of October 1935; and from this it appears
that, within the period of 1 year, the circulation increased from
113,800 to 486,000. Anybody will probably...

THE PRESIDENT: Well, that is quite sufficient. We do not want to know
any more about it.

DR. MARX: Very well, Mr. President. Then, may I be permitted...

COL. PHILLIMORE: My Lord, I—it is entirely in the hands of the
Tribunal, but we should see no objection from the Prosecution’s point of
view to admitting these documents. The first would appear to directly
link the Defendant Streicher with another of the conspirators. It would
be a most important document.

THE PRESIDENT: Very well, Dr. Marx. Then the three documents will be
admitted.

DR. MARX: I should like to submit the documents under Exhibit Numbers
19, 20, and 21.

THE PRESIDENT: Very well.

DR. MARX: I beg your pardon, Mr. President. May I make one more remark?
Why the matter came about now and was so delayed is that I personally
did not know anything about it before. It was only by accident that I
learned this from _Der Stürmer’s_ masthead. It was previously unknown to
me, and I considered it—considered it from my point of view as
pertinent evidence. I ask to be excused for not submitting it before
now.

DR. SAUTER: Mr. President, I naturally do not wish to submit any further
evidence; but I should like to ask you to clarify a question, a question
of law.

At this time interrogations are going on constantly in the commissions
in order to gather evidence with regard to the organizations. Witnesses
are being interrogated there whom we here do not know, and documents are
being submitted which we have not yet seen. It will be several weeks
before we know the results of this evidence about the organizations.

Now we defense attorneys, who are working here, are thinking of the
following case: It could happen, for instance, that one of these
defendants could be incriminated by some new testimony about the
organizations, or that documents might be submitted which we, as Defense
Counsel for these defendants, would absolutely have to take into
consideration in our pleas, or to which we would have to offer evidence
in rebuttal.

Now we are agreed that the evidence here should be concluded, but we
would naturally like to reserve the right in such cases to learn the
results of the hearings for the organizations.

THE PRESIDENT: I think you will find, when you look carefully at the
order which the Tribunal made, that this matter was provided for and
that, if there is any matter in the course of the hearing of the case
against the organizations which in any way materially or directly
affects any of the individual defendants, the Tribunal, of course, has
discretion to hear counsel for that defendant upon the matter; and I
think that is specifically dealt with in the order that we have made.

DR. SAUTER: This order is known to us, of course, Mr. President; but we
just wanted to be clear on this point, that this order will still remain
in force, even if the presentation of evidence here is concluded.

THE PRESIDENT: Certainly.

Do the Prosecution wish to make any application to the Tribunal?

COL. PHILLIMORE: I have eight documents to put in. My Lord, they are
documents which it is intended to refer to in the final speech; and
accordingly I would not propose to do more than just to indicate their
nature to the Tribunal and put them in very quickly. I have a list of
them which I will hand up first.

THE PRESIDENT: Are they documents which have not yet been offered in
evidence? It may be convenient to see their nature.

COL. PHILLIMORE: Yes, My Lord; I am offering them in rebuttal.

THE PRESIDENT: You have a list here?

COL. PHILLIMORE: Yes, My Lord, the first document is...

THE PRESIDENT: Have they been communicated to the defendants’ counsel?

COL. PHILLIMORE: No, My Lord; I have copies here.

The first document, 1519-PS, contains orders for the treatment of Soviet
prisoners of war. My Lord, that is not strictly offered in rebuttal; but
the Tribunal has had before it a document, EC-338, which was put in as
Exhibit USSR-356. That document consisted of a commentary by Admiral
Canaris on these orders, and Your Lordship may remember the document.
Defendant Keitel had made certain notes on it on which he was
cross-examined, the reference in the shorthand notes being Pages 7219 to
7223 (Volume X, Pages 622-625). My Lord, it seems appropriate that the
actual orders should be before the Court and not merely the commentary.

My Lord, that will be GB-525, and the Tribunal will see it consists of a
covering letter from the Defendant Bormann to Gauleiter and Kreisleiter
covering the OKW letter signed by General Reinecke, the head of the
Prisoners of War Organization; and then there follow the actual
regulations.

THE PRESIDENT: Has not this been in before?

COL. PHILLIMORE: My Lord, I am told not. What was put in was the
commentary on this document, which was by Admiral Canaris. It was
included—this document was included in the Keitel document book, but it
was not formally put in.

THE PRESIDENT: I see. You mean it will be GB...

COL. PHILLIMORE: 525, My Lord.

THE PRESIDENT: Yes.

COL. PHILLIMORE: My Lord, the second document, D-912, will be GB-526.
This is a series of broadcasts from German stations between 6 September
and 22 October 1939, monitored by the British Broadcasting Corporation
and dealing with the _Athenia_.

My Lord, I offer that document in view of the Defendant Raeder’s
evidence. The Tribunal will remember that, according to him, the article
on the 23 October in the _Völkischer Beobachter_ came as a complete
surprise. The reference in the shorthand notes is 9832, Page 9832
(Volume XIV, Page 80).

My Lord, it also arises out of the question, I think, put to the
Tribunal—put by the Tribunal to the Defendant Fritzsche; and it
confirms his evidence that broadcasts blaming Mr. Winston Churchill for
being responsible for the sinking of the _Athenia_ started at the early
part of September and went right on through the month. Actually, these
broadcasts, the Tribunal will see—the first on 6 September. I might
read perhaps one sentence in the second line:

    “The German press refutes the accusations of the British press
    that the German submarine had sunk the _Athenia_. Churchill, as
    one of his first actions, ordered the _Athenia_ to be sunk in
    order to stir up anti-German feeling in the U.S.A.”

Well, then there are similar broadcasts from other stations on that day,
again on the 7th, the 11th, the 25th. I have not got the one on the
27th, put in by General Rudenko; but there is one by the Defendant
Fritzsche on 1 October, and so on, culminating with a broadcast by
Goebbels on the 22d, the day before the article appeared. My Lord, that
will be GB-526.

The next document, 3881-PS, is an extract from the proceedings before
the Peoples’ Court on 7 and 8 August 1944, when seven defendants were
tried for the attempt on Hitler’s life. My Lord, I am only putting in a
translated extract, but the photostat is in fact complete. I should have
said that what is before the Tribunal is only a translation of certain
extracts, but the exhibit contains the complete record of the
proceedings. My Lord, I...

THE PRESIDENT: Unless we have it translated, we shall not be able to
have it in evidence.

COL. PHILLIMORE: My Lord, we do not intend to refer to more than the
translated extracts.

THE PRESIDENT: Very well.

COL. PHILLIMORE: I only said that for the benefit of Defense Counsel,
who may wish to look elsewhere.

My Lord, I put that in in view of the Defendant Jodl’s evidence that it
was only because British generals obeyed orders that the German generals
were now being tried. That is Page 11043 of the shorthand notes (Volume
XV, Page 383). And the passages—the nature of the passages is that the
president of the Peoples’ Court is refusing to accept the defense of
superior orders put forward by the defendants. My Lord, that will be
GB-527.

My Lord, the next document is D-181, which I offer as Exhibit GB-528. It
is a letter by a Gauleiter to Gauamtsleiter, Gauinspektor, and
Kreisleiter on the subject of the law of hereditary health and
sterilization on the ground of imbecility. It is an important document
in connection with the Defendant Frick, and I put it in in view of the
statements made on his behalf by his counsel at Page 8296 (Volume XII,
Page 162) of the shorthand notes, My Lord, when he said in effect that
Frick had no control over the political police and that Himmler’s
subordination to him was purely nominal.

My Lord, there are a number of references in the letter to the fact that
the decree—and indeed its administration—was the responsibility of the
Defendant Frick.

My Lord, the next document is of a similar nature, and I attribute it to
the same page of the shorthand notes. It is Document M-151, and I offer
it as Exhibit GB-529. It consists of three letters on the subject of the
murder of mental patients in institutions. The first is dated the 6th of
September and addressed by the supervisor of a sanatorium at Stetten to
the Reich Minister of Justice. It sets out the feeling of insecurity in
the neighborhood of the sanatorium administered by its inspector, in
view of the number of deaths which are occurring.

The second, dated the 10th, is a letter from the Minister of Justice
acknowledging the complaint and saying that it has been passed to the
Defendant Frick.

And the third, of the same date, is the Minister’s letter to his
colleague passing the complaint to him.

My Lord, the next document is again on the same subject. It is Document
M-152, and I offer it as Exhibit GB-530. It consists of four letters.

The first, dated the 19th of July 1940, is addressed to the Defendant
Frick as Reich Minister of the Interior, by Bishop Wurm, the Provincial
Bishop of the Württemberg Evangelical Provincial Church. My Lord, it
again sets out the mass of complaints he is receiving and then goes on
to deal with the wickedness of the practice which is apparently going
on.

The second letter, dated the 23d of August, is a letter to the Minister
of Justice referring to the letter sent to the Defendant Frick.

The third, of the 5th of September, is a letter to the Defendant Frick
reminding him of the previous letter of the 19th of July to which no
reply had been received.

And, on the 6th of September, the next letter is a parallel
communication again to the Minister of Justice.

Finally, on the 11th of September, the last page of the document, there
is a memorandum on the Minister of Justice’s file indicating that an
official of the Ministry had informed the Bishop’s dean, presumably Dean
Keppler, that the matter was entirely one for the Defendant Frick.

My Lord, the next document, D-455, which I offer as Exhibit GB-531, is a
pamphlet prepared by the German. Military Government authorities in
Belgium. It comes from the files of the German War Office, the OKW, and
it is entitled, _Belgium’s Contributions to Germany’s War Economy_, and
is dated the 1st of March 1942.

My Lord, I offer it in view of the general evidence that German
occupation was benevolent, and that—the Tribunal has heard, again and
again, the suggestion that they did a great deal of good to the
countries they occupied. This document is a very graphic illustration of
the falsity of that evidence out of the mouths of the Defense.

My Lord, if I might take the Tribunal very quickly through it, at Page 3
is a chart of the population figures in terms of employees, and it shows
that more than half the working population was working for Germany. Of
the 1,800,000 workers and employees in Belgium, 901,280 were employed
with the German Armed Forces and in the German interests.

My Lord, at Page 4 is a comparison between Belgium, Holland, and France
in terms of percentage of workers employed as slave labor.

My Lord, at Page 5 is a statement of the production figures for the
Belgian contribution to Germany, in—I think it is the seventh line, it
is summed up: “Output to the value of 1,200 million Reichsmark.”

Page 6—there is a comparison between the coal taken from Belgium and
the same amount produced in the year in the Ruhr.

At Page 8 there is comparison of iron, with the total amount of iron
used in the West Wall.

Page 9, cement; Page 10, textiles; Page 11, metals. There is a statement
there which contains a sentence about the summing up of what had been
taken out: “It was possible to achieve these results only by exhausting
the last reserves of the country.”

At Page 12 there is a chart of how the metal collection has affected
individuals. It is a comparison between Belgium, Holland, and France.

At Page 13 there is a statement about the contribution to traffic; and a
chart on Page 14.

At Page 15 it appears that the contributions in money exceeded the total
earning—earned income of the Belgian workers for the last year.

At Page 16 there are figures with regard to the quantity of gold taken
for safekeeping in the Reichsbank.

Page 18 deals with shares, a comparison with the total share capital of
I. G. Farben, the comparison being 700 million Reichsmark as against the
share capital of I. G. Farben of 800 millions.

Then there is a statement with regard to rations, showing that Germany
had imported food into Belgium but that, despite that, the rationing was
the lowest of all western countries.

And finally, on the last page, there is an indication of the change in
the Belgian rations by comparison between 1938 and under the benevolent
rule of the German Military Government in 1941. My Lord, it speaks for
itself.

My Lord, I—My Lord, the last document, D-524, is a similar pamphlet
referring to France. It comes from the same source, and I offer it as
Exhibit GB-532.

My Lord, owing to a breakdown in electric power, I have not been able to
finish photostating the English copies, but I will hand them in, if I
may, subsequently and for the moment I hand up German photostats.

My Lord, I offer it in view of the Defendant Sauckel’s evidence, at Page
10617 of the shorthand notes (Volume XV, Page 52), where he said that
the total slave labor figure was not more than 5 millions. My Lord, at
Pages 8 and 9 of this document, the Tribunal will see the slave labor
position of Germany at the end of 1943, so that to this must be added
slave labor drawn in during 1944. My Lord, it amounts to just under 7
millions, of which 1,462,000 were prisoners of war, so that the figure
of slave labor at the date was slightly over 5 millions; that is, slave
labor excluding prisoners of war was slightly over 5 millions, and to
that, as I say, one must add the increase during 1944.

My Lord, on Page 8 are the figures and comparisons: Men, civilians,
3,631,000; prisoners of war, 1,462,000; women, 1,714,000. And then it is
set out how that is divided by countries. And on Page 9 is merely an
illustration in color.

My Lord, the rest of the pamphlet merely gives figures illustrative of
what was taken from France, very similar to those in the case of
Belgium. And I would not propose to take the Tribunal through it unless
it is desired that I should do so.

My Lord, I think I gave that a number, Exhibit GB-532.

My Lord, that is all the documents that I have to offer. I understand my
friend, Mr. Dodd, has some.

MR. JUSTICE ROBERT H. JACKSON (Chief of Counsel for the United States):
May it please the Tribunal, at the time of the cross-examination of the
Defendant Hermann Göring we confronted him with a document, numbered
3787-PS, It was received as Exhibit USA-782. It was the report of the
second meeting of the Reich Defense Council. Göring acknowledged the
authenticity of the minutes as presented to him in the German text. But
the document at that time had not been translated, and consequently it
was not possible to read into the record the many parts of that document
which we considered important as bearing upon his credibility and
testimony, and as bearing upon the denials of many other of the
defendants that they knew of the planning of the war and that they
knew—participated in it.

I would now like to read from the record part of this which we consider
extremely important as rebuttal testimony received from several of the
defendants.

On the face of it, it is a letter of transmittal dated the 10th day of
July 1939, from the supreme command of the Armed Forces, on the subject,
“Second Meeting of the Reich Defense Council.”

One hundred copies were prepared, and our copy is the 84th. It is
labeled “most secret” and merely transmits in the name of the chief of
the supreme command of the Armed Forces the enclosed document to
following parties, among others. I shall name only the ones to which we
have attached some importance: To the Party, the Führer’s Deputy, the
first copy; to the Chief of the Reich Chancellery; to Ministerpräsident,
Field Marshal Göring, the Reich Minister and Commander-in-Chief of the
Air Force; to the Foreign Office; to the Plenipotentiary General for
Reich Administration are nine copies, including copies for the Minister
of the Interior, the Minister of Justice, the Minister of Education, the
Minister for Church Affairs, and the Reich Office for Planning; also to
the Plenipotentiary General for Economy, including copies for the
Minister of Economy, the Ministry of Food and Agriculture, the Ministry
of Labor, the Chief Forester, and the Commissioner for Price Control; to
the Minister of Finance; the Minister of Transport, Motor Transport, and
Roads; and the Minister of Railways; the Post Minister; the Minister of
Enlightenment and Propaganda; the Reichsbank Directorate; the General
Inspector of German Roads; the Armed Forces, including nine copies for
the OKH, five copies for the OKM, the Reich Minister for Air and
Commander-in-Chief of the Air Force; the supreme command of the Armed
Forces; a series of other copies being enclosed.

The enclosure is a report of the second meeting of the Reich Defense
Council, held on a date to which we attach importance, the 6th day—the
23d day of June 1939.

    “Place: Large conference room of the Reich Air Ministry.

    “Commencement: 1110; termination: 1355.

    “President: Ministerpräsident, General Field Marshal Göring.

    “Persons present...”

I shall name only those to which we attach some importance, because the
list is very long:

The Führer’s Deputy; the Chief of the Reich Chancellery, Dr. Lammers;
Reichsministerpräsident General Field Marshal Göring’s staff, Secretary
of State Körner, Secretary of State Naumann, Councillor Bergbohm, and
several others; Plenipotentiary General for Reich Administration,
Reichsminister Frick, Reichsführer SS Himmler and uniformed police,
Daluege; Plenipotentiary General for the Economy, Reichsminister Funk;
the Reichsminister of Finance Von Krosigk; Minister of Transport;
General Inspector of German Roads, Dr. Todt; supreme command of the
Armed Forces, Generaloberst Keitel, Warlimont, and Generalmajor Thomas;
supreme command of the Army, by—from the General Staff, General of
Artillery Halder; supreme command of the Navy, General
Admiral—Grossadmiral Raeder; Reich Minister for Air Force, Milch and
Bodenschatz, both of whom were witnesses here.

The contents, summarized, I will not read.

The minutes of the meeting:

    “Ministerpräsident, General Field Marshal Göring emphasized in a
    preamble that according to the Führer’s wishes the Reich Defense
    Council was the determining body in the Reich for all questions
    of preparation for war. It is to discuss only the most important
    questions of Reich defense. They will be worked out by the Reich
    Defense Committee.

    “Meetings of the Reich Defense Council are to be convened only
    for these decisions which are unavoidable. It is urged that the
    departmental chiefs themselves be present.

    “Distribution of labor.

    “I. The President announced the following directives to govern
    the distribution and employment of the population in wartime.

    “1. The total strength of the Armed Forces is determined by the
    Führer. It includes only half of the number of those fit and
    liable for military service. Nevertheless, their disposition
    will involve difficulties for economy, the administration, and
    the whole of the civil sphere.

    “2. When a schedule of manpower is made out, the basis on which
    the question is to be judged is how the remaining number, after
    those required for the Armed Forces have been withdrawn, can be
    most suitably employed.

    “3. Of equal importance to the requirements of the Armed Forces
    are those of the armament industry. It, above all, must be
    organized in peacetime as regards material and personnel in such
    a way that its production does not decrease but increases
    immediately with the outbreak of war.

    “4. The direction of labor to the vital war armament industry
    and to other civilian requirements is the main task of the
    Plenipotentiary General for Economy.

    “a. War armament covers not only the works producing war
    materials, but also those producing synthetic rubber (Buna),
    armament production tools, hydrogenation works, coal mining, _et
    cetera_.

    “b. (1) As a rule, no essential and irreplaceable specialists
    may be taken away from ‘war decisive’ factories, on whose
    production depends the course of the war, unless they can be
    replaced.

    “Coal mining is the most urgent work. Every worker who is
    essential to coal mining is ‘indispensable.’

    “Note: Coal mining has even now become the key point of the
    whole armament industry, of communications, and of export. If
    the necessary labor is not made available for it now, the most
    important part of the export trade, the export of coal, will
    cease. The purchase of coal in Poland will stop. The correct
    distribution of labor is determinative. In order to be able to
    man these key points with the right people, severe demands will
    shortly be submitted to the Führer which, even in the current
    mobilization year, will under certain circumstances lead to an
    exceptional war economy, for instance, to the immobilization of
    lorries and to the closing down of unessential factories owing
    to lack of coal.

    “In addition, there is the supplying of Italy and other
    countries such as Scandinavia with coal (to maintain the German
    supplies of iron).”

I shall omit certain parts of the document which do not seem
particularly important to our argument and pass to Item 2, Page 9 of the
English translation:

    “(2) A second category of workers liable for military service
    will be called up during the war after their replacements have
    been trained. A decisive role is played by the extensive
    preliminary training and retraining of workers.

    “(3) Preparations must be made for replacing the mass of other
    workers liable for military service, even by drawing on an
    increased number of women. There are also disabled servicemen.

    “(4) Compulsory work for women is of decisive importance in
    wartime. It is important to proceed to a great extent with the
    training of women in important war work, as replacements and to
    augment the number of male workers.

    “(d) In order to avoid confusion when mobilization takes place,
    persons working in important war branches, that is,
    administration, communications, police, food, will not be
    removed at first. It is essential to establish the degrees of
    urgency and importance.

    “In the interests of the auxiliary civilian service, provided by
    every European people to gain and maintain the lead in the
    decisive initial weeks of a war, efforts must in this way be
    made to insure by an efficient organization that every German in
    wartime not only possesses his mobilization orders but has also
    been thoroughly prepared for his wartime activity. The works
    must also be adapted to receive the replacements and additional
    workers.”

I shall skip to the bottom of Page 10, Item 6:

    “The Plenipotentiary General for Economy is given the task of
    settling what work is to be given to prisoners of war, to those
    in prison concentration camps and penitentiaries.

    “According to a statement by the Reichsführer SS, greater use
    will be made of the concentration camps in wartime. The 20,000
    inmates will be employed mainly in workshops inside the
    concentration camps.

    “IV. Secretary of State Dr. Syrup, of the Reich Ministry of
    Labor, made a report on the allocation of labor in the event of
    mobilization and the schedule of manpower for the war.”

This seems a little detailed; but it is, I think, very important,
showing the totality of the mobilization planned months before the war
started and indicating, as we shall argue, preparations for a war more
extensive than the mere brush with Poland.

    “The figures for the schedule of manpower, drawn up
    experimentally, could only be of a preparatory character and
    merely give certain guiding principles. The basis of a
    population of 79 millions was taken. Of these, 56.5 millions are
    between the ages of 14 and 65. It is also possible to draw upon
    men over the age of 65 and upon minors of between 13 and 14. The
    disabled and the infirm must be deducted from the 56.5 millions.
    Most prisoners are already employed in industry. The greatest
    deduction is that of 11 million mothers with children under 14.
    After deduction of these groups, there remains an employable
    population of 43.5 millions: 26.2 million men—after deducting 7
    million members of the Armed Forces, 19.2; 17.3 million
    women—after deducting 250,000 nurses _et cetera_, 17.1 for the
    whole of Germany’s economic and civil life. The President does
    not consider women over the age of 60 as employable.

    “8. The number of workers at present employed and of employees
    (two-thirds of the wage workers) distributed over 20 large
    branches of industry amounts roughly to the following: 24
    million men (excluding 2 million service men), 14 million women.

    “9. No information was then available regarding the number which
    the Armed Forces will take from the individual branches of
    industry. Therefore an estimate was made of the numbers
    remaining in the individual branches of industry after 5 million
    servicemen had been called up.

    “The President’s demand that the exact number liable to military
    service be established, is being complied with. These inquiries
    are not secret apart from figures given and formations.”

I shall skip the next paragraph, 10, as of no importance.

    “11. Apart from the 13.8 million women at present employed, a
    further 3.5 million unemployed women, who are listed on the card
    index of the population, can be employed.

    “2 million women would have to be redirected; that is, a
    transfer can be made to agriculture and to the metal and
    chemical industry, from the textile, clothing, and ceramic
    industries, from small trading, insurance and banking
    businesses, and from the number of women in domestic service.

    “12. The lack of workers in agriculture, from which about 25
    percent of the physically fit male workers will be withdrawn,
    must be made up by women (2 in the place of 1 man) and prisoners
    of war. No foreign workers can be counted on. The Armed Forces
    are requested to release to a great extent owners and
    specialists such as milkers, tractor drivers, 35 percent of whom
    are still liable for call-up.

    “13. The President emphasized that factory managers, police, and
    the Armed Forces must make preparations for the employment of
    prisoners of war.

    “14. In the agricultural sphere preparations must also be made
    to relieve bottlenecks by help from neighboring farms,
    systematic use of all machines and laying in stocks of spare
    parts.

    “15. The President announced that in wartime hundreds of
    thousands of workers from nonwar industries in the Protectorate
    are to be employed under supervision in Germany, particularly in
    agriculture. They are to be housed in barracks. General Field
    Marshal Göring will obtain a decision from the Führer on this
    matter.”

I shall omit 16.

If I may say as I offer this, it seems rather detailed as showing the
extent of preparation already accomplished at the time, in June of 1939:

    “17. a. The result of the procedure of establishing
    indispensable and guaranteed workers is at present as follows:
    Of 1,172,000 applications for indispensability, 727,000 have
    been approved and 233,000 rejected.”

I shall pass to “c” near the bottom of the page:

    “The orders to supplementary personnel to report for duty are
    ready and tied up in bundles at the labor offices.”

The meeting proceeds to consider production premiums in connection with
wages, and I pass to 21, a detail which I offer as indicating that a
long war was in anticipation.

    “When labor is being regrouped, it is important—and with
    specialists even essential—that the workers are retrained for
    their work in the new factory, in order to avoid setbacks in the
    initial months of the war. After a few months have passed even
    the replacement of most of the specialists must be possible.”

I pass to the Point V:

    “The Plenipotentiary General for Economy, Reich Minister of
    Economy Funk, stated his opinion on the fluctuations of the
    schedule of manpower, from the viewpoint of the carrying on of
    industry.

    “24. a. In accordance with the verbal agreements made with the
    OKW, the regulations regarding indispensable personnel have been
    laid down and the certificates of indispensability issued.”

I shall pass to Point Number 25 on Page 15:

    “In reply to the request by the speaker that when withdrawing
    workers for the naval dockyards, more consideration should be
    shown for the important sections of industry, particularly
    export and newspaper concerns, the President pointed out the
    necessity of carrying out the naval building program as ordered
    by the Führer in full.”

I pass to the large heading VI:

    “The Plenipotentiary General for Administration, Reich Minister
    of the Interior, Dr. Frick, dealt with the saving of labor in
    the public administration.

    “27. The task is primarily a problem of organization. As can be
    seen from the surveys, which were submitted to those attending
    the conference, showing how the authorities, economic and social
    services are organized, there are approximately 50 different
    kinds of officials in the district administration, each quite
    independent of the other—an impossible state of affairs.
    Formerly there were in the State two main divisions, the state
    civil service and the Wehrmacht. After the seizure of power, the
    Party and the permanent organizations (Reichsnährstand, _et
    cetera_) were added to these, with all their machinery from top
    to bottom. In this way the number of public posts and officials
    was increased many times over. This makes public service more
    difficult.

    “28. Since the war tasks have increased enormously.”—The
    context makes it clear that that is the preceding war.—“The
    organizing of total war naturally requires much more labor, even
    in the public administration, than in 1914. But it is an
    impossibility that this system should have increased its numbers
    20 to 40 fold in the lowest grade alone. For this reason, the
    Reich Ministry of the Interior is striving for uniformity of
    administration.”

A small conference—small commission was created. I offer Number 29 in
connection with Göring’s testimony that they ceased to function:

    “Instead of further discussions before the whole assembly, the
    forming of a small commission which will make definite proposals
    is recommended. Extensive preparatory work has been undertaken.”

And a note by the committee that the committee had been functioning.

Point 30:

    “The President requested that the commission’s proposals be
    submitted. It was an important section for the preparation for
    war.”

I shall pass to the large subdivision C which relates to increasing the
efficiency of the communications service, starting with the receipt of a
report from the Army General Staff.

    “31. Eighteen months ago the result of the examination of the
    plan for strategic concentration showed that the transport
    service could not meet all the demands made on it by the Armed
    Forces. The Minister of Transport confirmed this statement. The
    1938 part of the Four Year Plan will presumably be completed in
    August 1939.

    “32. Shortly after this program was drawn up demands were made
    on the Wehrmacht which had changed completely compared with the
    traditional use of the Wehrmacht at the beginning of a war.
    Troops had to be brought to the frontier, in the shortest
    possible time, in numbers which had until then been completely
    unforeseen. The Wehrmacht was able to fulfill these demands by
    means of organizational measures but transport could not.

    “33. In the field of transportation Germany is at the moment not
    yet ready for war.”

I offer the detail which follows, in contradiction of the statements
repeatedly made by a number of witnesses that the movements of the
Wehrmacht in the Rhineland, the Anschluss, and all the rest of it, even
Czechoslovakia, were surprise movements.

    “a. In the case of the three operations in 1938/1939 there was
    no question of an actual strategic concentration. The troops
    were transported a long time beforehand near to the area of
    strategic concentration by means of camouflaged measures.

    “b. This stop-gap is of no use whatever when the time limit
    cannot be fixed or is not known a long time beforehand, but when
    an unexpected and almost immediate military decision is
    required. According to the present situation transport is not in
    a position, despite all preparations, to bring up the troops.”

“a” is unimportant for my purposes, “a” on Page 18. “b” and “c”
represent steps to be taken to meet the deficiency. On Page 19 I shall
not bother to read the statements on 38, showing the preparation of
highways from east to west and from north to south.

I read Number 39, if I may:

    “The President remarked that even in peacetime certain vital
    supply stores of industry and the Armed Forces are to be
    transferred to the war industrial centers to economize in
    transport later on.”

I shall pass to Point Number 41 on Page 20:

    “To sum up, the President affirmed that all essential points had
    been cleared up at this meeting.”

The American branch of the Prosecution has some additional documents
which Mr. Dodd will submit, if it is agreeable to the Tribunal.

THE PRESIDENT: We will adjourn now.

                        [_A recess was taken._]

THE PRESIDENT: Mr. Dodd, you have got some other papers to put in?

MR. DODD: I would like to offer, Mr. President, Document 4006-PS, which
is the bulletin of the Reich Minister for Armament and Ammunition; and
it is a matter that the Tribunal, in our judgment, may take judicial
notice of. It is an official publication, but it will be quite helpful
in connection with the labor program as between Sauckel and Speer; and
it is offered for that purpose, to clear up some of the doubts that may
have arisen after the Speer and Sauckel testimony. I think there is no
necessity to read it at all but simply to offer it. And it would become
Exhibit USA-902.

And then I would like to offer Document 1452-PS. This is a report of a
conference of the chiefs with the chief of the department of the
Economic Armament Office, and I would just like to read a short excerpt
from it. It is Document 1452-PS, dated the 24th of March 1942. It says:

    “Conferences of the chiefs with the chief of the department.
    Report of the chief of the department on the conference on the
    23d of March with Milch, Witzell, Leeb, in Minister Speer’s
    office. The Führer looks upon Speer as his principal mouthpiece,
    his trusted adviser in all economic spheres. Speer is the only
    one who has something to say today. He can interfere in any
    department. He already disregards all other departments.”

The remainder of the document we do not wish to quote, I do not think it
is necessary because the text is not changed any by what we have quoted
from it. That becomes Exhibit USA-903.

Now, we also have here some photographs, Mr. President; and these are
offered with respect to the Defendant Kaltenbrunner. They were turned
over to us by our colleagues of the French Prosecution. And the first
one is Document F-894, which becomes Exhibit USA-904. That is a picture
showing Himmler congratulating someone, Kaltenbrunner immediately to his
rear.

THE PRESIDENT: How are they identified?

MR. DODD: I will submit it—well, these are all captured documents, of
course, but—you mean in the picture, Mr. President?

THE PRESIDENT: No, I mean by capture or any other way. Where do they
come from?

MR. DODD: Well, I assume them to be all captured documents. Oh, I see
now—there are affidavits attached to each one which explain their
source. Here, this first one is a man by the name of François Boix, who
says that he is a photographer and was interned at Mauthausen and so on;
and he attests that this photograph was taken, and so forth. I think
that is sufficient—I assume it is—to identify the picture. I believe
that each one of them has a similar statement.

Now the next one is Document F-896, which becomes Exhibit USA-905. And
this as well on the back of the original bears an affidavit by François
Boix.

The next one is Document F-897, which becomes Exhibit USA-906. And this
as well, bears the affidavit of François Boix and shows Kaltenbrunner
and Himmler and other SS officials.

And then, lastly, Document F-895, which becomes Exhibit USA-907; and
this picture we particularly call to the Tribunal’s attention. It, as
well, bears the certificate of François Boix. Kaltenbrunner is there in
the second row, Himmler and Hitler in the immediate center between
Kaltenbrunner and, apparently, Martin Bormann, taken at a concentration
camp, which appears from the picture of the inmates on the left side.

Then we wish to offer a very short affidavit, which is Document 4033-PS
and we offer as Exhibit USA-907—no, 8, 908. It is the deposition of
Oswald Pohl, P-o-h-l, dated the 28th of May 1946. The affidavit—the
substance of the affidavit reads as follows:

    “I can say with absolute certainty that while on official
    business at Mauthausen I saw and spoke to SS Obergruppenführer
    Kaltenbrunner...”

THE PRESIDENT: One moment. Was Pohl called as a witness?

MR. DODD: No, Sir, he was not, he was not called. That was Puhl,
P-u-h-l. The names are similar.

    “...I saw and spoke to SS Obergruppenführer Kaltenbrunner there
    at the officers’ mess on the right-hand side of the camp
    entrance either in the autumn of 1943 or the spring of 1944. I
    took lunch with him there at the mess table.”

And then another affidavit, Document 4032-PS, which becomes Exhibit
USA-908—no, 909. I think it is unnecessary to read this; it has been
translated. It is the deposition of one Karl Reif, R-e-i-f, in which he
states that he saw Kaltenbrunner either in May or June, about midday, in
1942 in the camp at Mauthausen.

That is all we have to offer, Mr. President.

THE PRESIDENT: Do the other members of the Prosecution wish to offer any
other evidence?

[_There was no response._]

Then now we can pass to evidence to be called on behalf of Bormann. Dr.
Bergold, will you call the witnesses you wish to call—Kempka.

DR. BERGOLD: Gentlemen of the Tribunal, I shall call the witness Kempka.

[_The witness Kempka took the stand._]

THE PRESIDENT: Will you state your full name, please.

ERICH KEMPKA (Witness): My name is Erich Kempka.

THE PRESIDENT: Will you repeat this oath after me: I swear by God—the
Almighty and Omniscient:—that I will speak the pure truth—and will
withhold and add nothing.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down.

DR. BERGOLD: Witness, in what capacity were you employed near Hitler
during the war?

KEMPKA: During the war I worked for Adolf Hitler as his personal driver.

DR. BERGOLD: Did you meet Martin Bormann in that capacity?

KEMPKA: Yes, I met Martin—Reichsleiter Martin Bormann in this capacity
at that time as my indirect superior.

DR. BERGOLD: Witness, on what day did you see the Defendant Martin
Bormann for the last time?

KEMPKA: I saw the Reichsleiter, the former Reichsleiter Martin Bormann,
on the night of 1-2 May 1945 near the Friedrichstrasse railroad station,
at the Weidendammer Bridge. Reichsleiter Bormann—former Reichsleiter
Bormann—asked me what the general situation was at the Friedrichstrasse
station, and I told him that there at the station it was hardly
possible...

THE PRESIDENT: You are going too fast. He asked you what?

KEMPKA: He asked me what the situation was and whether one could get
through there at the Friedrichstrasse station. I told him that was
practically impossible, since the defensive fighting there was too
heavy. Then he went on to ask whether it might be possible to do so with
armored cars. I told him that there was nothing like trying it.

Then a few tanks and a few SPW (armored personnel carrier) cars came
along, and small groups boarded them and hung on. Then the armored cars
pushed their way through the antitank trap and afterwards the leading
tank—along about at the middle of the tank on the left-hand side, where
Martin Bormann was walking—suddenly received a direct hit, I imagine
from a bazooka fired from a window, and this tank was blown up. A flash
of fire suddenly shot up on the very side where Bormann was walking and
I saw...

THE PRESIDENT: You are going too fast. You are still going much too
fast. The last thing I heard you say was that Bormann was walking in the
middle of the column. Is that right?

KEMPKA: Yes, at the middle of the tank, on the left-hand side.

Then, after it had got 40 to 50 meters past the antitank trap, this tank
received a direct hit, I imagine from a bazooka fired from a window. The
tank was blown to pieces right there where Martin—Reichsleiter
Bormann—was walking.

I myself was flung aside by the explosion and by a person thrown against
me who had been walking in front of me—I think it was Standartenführer
Dr. Stumpfecker—and I became unconscious. When I came to myself I could
not see anything either; I was blinded by the flash. Then I crawled back
again to the tank trap, and since then I have seen nothing more of
Martin Bormann.

DR. BERGOLD: Witness, did you see Martin Bormann collapse in the flash
of fire when it occurred?

KEMPKA: Yes, indeed, I still saw a movement which was a sort of
collapsing. You might call it a flying away.

DR. BERGOLD: Was this explosion so strong that according to your
observation Martin Bormann must have lost his life by it?

KEMPKA: Yes, I assume for certain that the force of the explosion was
such that he lost his life.

DR. BERGOLD: How was Martin Bormann dressed at that time?

KEMPKA: Martin Bormann was wearing a leather coat, an SS leader’s cap,
and the insignia of an SS Obergruppenführer.

DR. BERGOLD: Do you therefore believe that if he had been found wounded
on that occasion he would have been immediately identified, by this
clothing, as being one of the leading men of the Movement?

KEMPKA: Yes, indeed.

DR. BERGOLD: You said that another man was walking either beside or
ahead of Martin Bormann, namely a Herr Naumann of the Propaganda
Ministry?

KEMPKA: Yes, it was the former State Secretary, Dr. Naumann.

DR. BERGOLD: Was he approximately at the same distance from the
explosion?

KEMPKA: No, he was about 1 or 2 meters ahead of Martin Bormann.

DR. BERGOLD: Have you seen anything of this State Secretary Naumann
subsequently?

KEMPKA: No, I have not seen him again either, nor Standartenführer Dr.
Stumpfecker.

DR. BERGOLD: Then you crawled back, did you not?

KEMPKA: Yes.

DR. BERGOLD: And nobody else followed you?

KEMPKA: Certainly. Always, when you passed this antitank trap, you would
run into defensive fire; a few only would remain lying on the spot while
the rest always retreated. But those on that tank I have never seen
again.

DR. BERGOLD: Gentlemen of the Tribunal, I have no further questions for
this witness.

MR. DODD: I have no questions, Mr. President.

THE PRESIDENT: Do the Defense Counsel want to ask him any questions?

[_There was no response._]

[_Turning to the witness._] How many tanks were there in this column?

KEMPKA: That I cannot say at the moment—possibly two or three. There
may have been four, but there were more SPW cars, armored personnel
carriers.

THE PRESIDENT: How many were there of them?

KEMPKA: More and more came up, and then some of them drove away again.
They tried to break through at that point. Possibly one or two tried.
The others withdrew after the tank was blown up.

THE PRESIDENT: Where did the column start from?

KEMPKA: That I do not know. They came quite suddenly—there they were, I
assume that they were tanks which had withdrawn into the middle of the
town and were also trying to break out in a southerly direction.

THE PRESIDENT: When you say they were there suddenly, where do you mean
they were? Where did they pick you up?

KEMPKA: I was not picked up. I left the Reich Chancellery...

THE PRESIDENT: Well, where did they join you? Where did you first see
them?

KEMPKA: At the Weidendammer Bridge, behind the Friedrichstrasse station.
They turned up there during the night.

THE PRESIDENT: Where was it that Bormann first asked you whether it
would be possible to get through?

KEMPKA: That was at the tank barrier behind the Friedrichstrasse station
at the Weidendammer Bridge.

THE PRESIDENT: Do you mean that you met him in the street?

KEMPKA: Yes. Martin Bormann was not present when we left the Reich
Chancellery; he did not appear at the bridge until between 2 and 3
o’clock in the morning.

THE PRESIDENT: You met him there just by chance, do you mean?

KEMPKA: I only met him by chance, yes.

THE PRESIDENT: Was there anybody with him?

KEMPKA: State Secretary Dr. Naumann from the Ministry of Propaganda was
with him, as well as Dr. Stumpfecker who had been the last doctor who
was with the Führer.

THE PRESIDENT: How far were they from the Reich Chancellery?

KEMPKA: That is—are—up to—from the Reich Chancellery to the
Friedrichstrasse station is approximately a quarter of an hour’s walk
under normal circumstances.

THE PRESIDENT: And then you saw some tanks and some other armored
vehicles coming along, is that right?

KEMPKA: Yes, yes indeed.

THE PRESIDENT: German tanks and German armored vehicles?

KEMPKA: Yes, German armored cars.

THE PRESIDENT: Did you have any conversation with the drivers of them?

KEMPKA: No, I did not talk to the drivers. I think State
Secretary—former State Secretary Dr. Naumann did.

THE PRESIDENT: And then you did not get into the tanks or the armored
vehicles?

KEMPKA: No, we did not get in—neither State Secretary Dr. Naumann nor
Reichsleiter Bormann.

THE PRESIDENT: You just walked along?

KEMPKA: I just walked along, yes.

THE PRESIDENT: And where were you with reference to Bormann?

KEMPKA: I was behind the tank, about—on the left-hand side behind the
tank.

THE PRESIDENT: How far from Bormann?

KEMPKA: It was perhaps 3 or 4 meters.

THE PRESIDENT: And then some missile struck the tank, is that right?

KEMPKA: No, I believe the tank was hit by a bazooka fired from a window.

THE PRESIDENT: And then you saw a flash and you became unconscious?

KEMPKA: Yes, I suddenly saw a flash of fire and in the fraction of a
second I also saw Reichsleiter Bormann and State Secretary Naumann both
make a movement as if collapsing and flying away. I myself was thrown
aside with them at that same moment and subsequently lost consciousness.

THE PRESIDENT: And then you crept away?

KEMPKA: When I recovered I could not see anything and then I crawled
away and crawled until I bumped my head against the tank barrier.

THE PRESIDENT: Where did you go to that night?

KEMPKA: I waited there for a while, and then I said farewell to my
drivers, some of whom were still there; and then I stayed in the ruins
of Berlin, and on the following day I left Berlin.

THE PRESIDENT: Where were you captured?

KEMPKA: I was captured at Berchtesgaden.

THE TRIBUNAL (Mr. Biddle): How near were you to the tank when it
exploded?

KEMPKA: I estimate 3 to 4 meters.

THE TRIBUNAL (Mr. Biddle): And how near was Bormann to the tank when it
exploded?

KEMPKA: I assume that he was holding on to it with one hand.

THE TRIBUNAL (Mr. Biddle): Well, you say you assume it. Did you see him
or did you not see him?

KEMPKA: I did not see him on the tank itself. But to keep pace with the
tank I had done the same thing and had held on to the tank at the back.

THE TRIBUNAL (Mr. Biddle): Did you see Bormann trying to get on the tank
just before the explosion?

KEMPKA: No, I did not see that. I did not see any effort on Bormann’s
part which indicated that he wanted to climb onto the tank.

THE TRIBUNAL (Mr. Biddle): How long before the explosion were you
looking at Bormann?

KEMPKA: All this happened in a very brief period. When I was still
talking to Bormann the tanks turned up and we passed the tank trap right
away and after 30 or 40 meters the tank was hit.

THE TRIBUNAL (Mr. Biddle): What do you call a brief period?

KEMPKA: Well, while we were talking, that was perhaps a few minutes
only.

THE TRIBUNAL (Mr. Biddle): And how long between the conversation and the
explosion?

KEMPKA: I cannot tell you the exact time, but surely it was not a
quarter of an hour, or perhaps rather not half an hour.

THE TRIBUNAL (Mr. Biddle): Had you been in the Chancellery just before
this?

KEMPKA: I left the Reich Chancellery in the evening about 9 o’clock.

THE TRIBUNAL (Mr. Biddle): Have you ever told this story to anyone else?

KEMPKA: I have been interrogated several times on this subject and have
already made the same statement.

THE TRIBUNAL (Mr. Biddle): And who took your interrogation, some
officers?

KEMPKA: Yes.

THE TRIBUNAL (Mr. Biddle): Of what army, what nations?

KEMPKA: I have been interrogated by various officers of the American
Army, the first time at Berchtesgaden, the second time at Freising, and
the third time at Oberursel.

MR. DODD: As a result of the Court’s inquiry there are one or two
questions that occur to me that I think perhaps should be brought out
which I would like to ask the witness, if I may.

THE PRESIDENT: Certainly.

MR. DODD: You were with Bormann, were you, at 9 o’clock in the bunker in
the Reich Chancellery on that night?

KEMPKA: Yes, indeed. I saw him for the last time about 9 o’clock in the
evening. When I said farewell to Dr. Goebbels, I also saw Martin Bormann
down in the cellar; and then I saw him again during the night about 2 or
3 o’clock in the morning.

MR. DODD: Well, maybe you said so, but I did not get it if you did.
Where did you see him at 2 or 3 in the morning prior to the time that
you started to walk with him along with the tank?

KEMPKA: Before that I saw him at the Friedrichstrasse station between 2
or 3 in the morning, and before that I saw him for the last time at 21
hours in the Reich Chancellery on the preceding evening.

MR. DODD: Well I know you did. But did not you and Bormann have any
conversation about how you would get out of Berlin when you left the
Reich Chancellery bunker at about 9 o’clock that night?

KEMPKA: I took my orders from the former Brigadeführer Milunke. I was
not receiving direct orders from Reichsleiter Bormann any more.

MR. DODD: I did not ask you if you got an order from him. I asked if you
and Bormann had not—and whoever else was there—had not discussed how
you would get out of Berlin. It was 9 o’clock at night and the situation
was getting pretty desperate. Did you not talk about how you would get
out that night? There were not many of you there.

KEMPKA: Oh yes, there were about 400 to 500 people in all still in the
Reich Chancellery and those 400 or 500 people were divided into separate
groups, and these groups left the Chancellery one by one.

MR. DODD: I know there may have been that many in the Chancellery. I am
talking about that bunker that you were in. You testified about this
before, have you not? You told people that you knew that Hitler was dead
as well as Bormann. And you must have been in the bunker if you know
that.

KEMPKA: Yes, I have already testified to that effect.

MR. DODD: Well, what I want to find out is whether or not you and
Bormann and whoever was left in that bunker talked about leaving Berlin
that night before you left the bunker?

KEMPKA: No, I did not speak about it any more to Reichsleiter Bormann at
that time. We had marching orders only to the effect that if we were
successful we should report at Fehrbellin where there was a combat group
which we were to join.

MR. DODD: You are the only man who has been able to testify that Hitler
is dead and the only one who has been able to testify that Bormann is
dead, is that so, so far as you know?

KEMPKA: I can state that Hitler is dead and that he died on 30 April in
the afternoon between 2 and 3 o’clock.

MR. DODD: I know, but you did not see him die either, did you?

KEMPKA: No, I did not see him die.

MR. DODD: And you told the interrogators that you believe you carried
his body out of the bunker and set it on fire. Are you not the man who
has said that?

KEMPKA: I carried out Adolf Hitler’s wife, and I saw Adolf Hitler
himself wrapped in a blanket.

MR. DODD: Did you actually see Hitler?

KEMPKA: I did not see all of him. The blanket in which he was wrapped
was rather short, and I only saw his legs hanging out.

MR. DODD: I do not think I will inquire any further, Mr. President.

DR. BERGOLD: I have no further questions either.

THE PRESIDENT: The witness can retire.

DR. BERGOLD: Gentlemen of the Tribunal, the witness Walkenhorst is also
still present here. It appears to me that there is a misunderstanding
between the High Tribunal and myself. I stated Saturday that I did not
wish to call any more witnesses besides the witness Kempka, and I
expressly waive the witness Walkenhorst.

THE PRESIDENT: What was he? What did you ask for him to prove in the
first instance?

DR. BERGOLD: I had originally called him as a substitute...

THE PRESIDENT: We have got your application.

DR. BERGOLD: But after talking to witness Klöpfer, whom I have also
waived, I am also waiving the witness Walkenhorst because he does not
appear to me to be competent enough to testify on what I wanted him to
testify about.

My entire presentation of evidence, therefore, is now completed, except
for the two documents which the Tribunal have already granted me,
namely, the decree about stopping the measures against the churches and
Bormann’s decree from the year 1944, with which he forbade members of
the Chancellery to be members of the SD. Those two documents I have not
yet received. When I have received them I shall submit them.

THE PRESIDENT: Very well.

Dr. Servatius, you have some question or affidavit you wanted to get
from this witness Walkenhorst, did you not?

DR. SERVATIUS: I have an affidavit from this witness Walkenhorst which
deals briefly with the question of the telephone conversation which
Sauckel had at that time about the evacuation of the Buchenwald Camp. He
has been accused of having ordered the evacuation of the camp when the
American army approached. Now this witness Walkenhorst has accidently
been found and it turns out that oddly enough he was the man with whom
Sauckel spoke. He has confirmed to me in an affidavit that Sauckel
demanded that the camp should be surrendered in an orderly way.

That is all I wanted to ask this witness. I can submit it here in the
form of an affidavit.

THE PRESIDENT: Do the Prosecution want the man called or will the
affidavit do?

DR. SERVATIUS: I am satisfied with handing over the affidavit.

COL. PHILLIMORE: My Lord, as far as the Prosecution are concerned, an
affidavit would suffice.

THE PRESIDENT: Very well.

DR. SERVATIUS: Then I shall submit the affidavit and I will give the
exhibit number together with my list.

THE PRESIDENT: Yes, there is one other matter to which I wish to draw
the attention of defendants’ counsel.

The Tribunal have been informed as to the length of the speeches of
certain of the defendants’ counsel which have been placed before the
Translation Division for translation, and in the case of the Defendant
Keitel and in the case of the Defendant Jodl the speeches which have
been put into the Translation Division seem to be very much longer than
the Tribunal had anticipated and quite impossible to be spoken in 1 day.

Would counsel for the Defendant Keitel explain to the Tribunal why that
is and what steps he has taken to shorten his speech?

DR. NELTE: Mr. President, I have sent a letter to the Court today which
I believe is not yet in the Tribunal’s possession. In it I requested
that in the case of the Defendant Keitel I should be permitted to exceed
the regular length of time, which had been limited to 1 day for the big
cases. When, at the request of the Tribunal, I stated the time which my
final speech would take, I had my manuscript completed. This manuscript
would have taken about 7 hours. I gave that manuscript to the
Translation Division in that form because it was no longer possible to
alter it. I submitted the first part last Wednesday and then the second
part on Saturday morning.

If the Tribunal, in accordance with its decision, fixes 1 day, that is,
5½ hours of actual speech, as the maximum and is unwilling to depart
from that ruling in any case, not even in the case of the Defendant
Keitel, who has been particularly seriously implicated, then I shall be
forced to eliminate certain passages from the manuscript and to submit
them only in writing. I hope the Tribunal will also decide whether that
is possible.

THE PRESIDENT: Dr. Nelte, the Tribunal takes note of the fact that when
you were asked how long your speech would take, you said, I think, 7
hours.

DR. NELTE: Yes.

THE PRESIDENT: 7 hours. Well, according to the estimate which has been
given to the Tribunal, the speech which you submitted for translation
would take about 13 hours. That is nearly double as long as you yourself
said, and it is almost exactly double the length of the speech which has
been submitted for the Defendant Ribbentrop, whose case is almost as
extensive if not quite as extensive; and it appears to the Tribunal to
be out of all reason to put in a speech which will probably take nearly
double the time that you yourself stated. The speech you put in is more
than double the length of the speech which has been put in on behalf of
the Defendant Göring.

DR. NELTE: Naturally, I am unable to know by what points of view the
counsel for Reich Marshal Göring or Foreign Minister Von Ribbentrop are
guided and governed. I can only be guided by my own views and sense of
duty.

THE PRESIDENT: Perhaps that is a matter of comparison, it is true, but
you said 7 hours yourself, and you now put in a speech which will
probably take 13.

DR. NELTE: I believe, Mr. President, that I shall make that speech in 7
hours, if I have 7 hours speaking time.

THE PRESIDENT: Well, the Tribunal has given this matter a very full
consideration, as you are aware; and they have said that every speech
must be made in 1 day and that will take up some considerable time for
the whole of the defendants to make their speeches.

DR. NELTE: Mr. President, I shall wait for your decision. If I am
confined to 1 day, then I shall have to leave out certain parts from my
manuscript. But in that case I should have to ask that the remainder be
taken cognizance of by the Tribunal, because every thing that I have
included in my manuscript is the minimum of what should be delivered on
such a comprehensive case.

THE PRESIDENT: Dr. Nelte, we will consider that application for you to
be allowed to put in the other passages in your speech; and we will let
defendants’ counsel know what our decision is upon that.

Dr. Siemers, the Tribunal has now received a full report showing the
immense trouble taken by the Secretariat to find or to try and find the
witness Schulze, Otto Schulze, for you since you first asked for him in
February of this year; and the Tribunal would like to know what steps
you have taken in the meantime to try and find him.

DR. SIEMERS: I believe, Mr. President, that there was no need to find
the witness because, actually, it was known that he was living in
Hamburg-Blankenese and because, in my opinion, he is still in
Hamburg-Blankenese; and I have given this address to the General
Secretariat many times.

THE PRESIDENT: Well, you knew what the General Secretary’s office were
doing about the matter. You knew that they were unable to find him at
the address. You knew that they had sent the interrogatories to
Washington because they were told he had been taken over there, and we
are told that you have been in Hamburg yourself.

DR. SIEMERS: That the interrogatory was sent to Washington is something
which I have known only since last Friday, after my return from Hamburg.
I personally did not anticipate that such a mistake or such a
misunderstanding could arise. Unfortunately, I also do not know how it
did arise. Far be it from me to make any kind of accusation. I have
merely requested that if the document were received, then the Tribunal
should agree to receive it in evidence later. Unfortunately, I cannot
submit it today. I immediately informed the General Secretariat of the
address once more; I do not know anything more than this address in
Hamburg, either. In my opinion, Admiral Schulze is not in captivity. It
is possible that during my absence some misunderstanding occurred, but I
myself heard that only last Friday.

THE PRESIDENT: Well, I cannot understand why, during all these months
that you have been here and have had full opportunity of seeing the
General Secretary and have received all the assistance which you and all
the other defendants’ counsel have received from the General
Secretariat, that you should not have helped the General Secretary
better to find this witness. That is all.

We will adjourn now.

      [_The Tribunal adjourned until 4 July 1946, at 1000 hours._]




                   ONE HUNDRED AND SEVENTY-FIRST DAY
                          Thursday, 4 July 1946


                           _Morning Session_

THE PRESIDENT: Dr. Sauter.

DR. SAUTER: If you please, Mr. President.

THE PRESIDENT: The Tribunal has received your letter of the 17th of June
of this year, signed by the Defendant Walter Funk.

DR. SAUTER: Yes.

THE PRESIDENT: The Tribunal proposes to take notice of that; and if you
will read it, it will then become a part of the record. So if you will
read it to us now.

DR. SAUTER: Mr. President, at the moment I do not have the letter with
me.

THE PRESIDENT: You may have my copy, but that is in English. The
Tribunal would wish you to do it at 2 o’clock, then—to read that
letter.

DR. SAUTER: Thank you, Mr. President.

THE PRESIDENT: The same observation applies to Dr. Exner’s letter of the
23d of June 1946 on behalf of the Defendant Jodl; only the Tribunal
thinks that that letter also should be signed by the defendant, and read
by Dr. Exner at 2 o’clock.

I call on Dr. Jahrreiss.

PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Mr.
President and Gentlemen of the Tribunal, the main juridical and
fundamental problem of this Trial concerns war as a function forbidden
by international law; the breach of peace as treason perpetrated upon
the world constitution.

This problem dwarfs all other juridical questions.

The four chief prosecutors have discussed the problem in their opening
speeches, sometimes as the central theme of their presentation,
sometimes as a fundamental matter, while indeed differing in their
conceptions thereof.

It is now up to the Defense to examine it. The body of Defense Counsel
have asked me to conduct this examination. It is true that it is for
each counsel to decide whether and to what extent he feels in a position
to renounce, as a result of my arguments, his own presentation of the
question of breach of the peace. However, I have reason to believe that
counsel will avail themselves of this opportunity to such an extent that
the intention of the Defense to contribute materially toward a technical
simplification of the phase of the Trial which is now beginning, will be
realized by my speech.

I am concerned entirely with the juridical question, not with the
appreciation of the evidence submitted during the past months. Also, I
am dealing only with the problems of law as it is at present valid, not
with the problem of such law as could or should be demanded in the name
of ethics or of human progress.

My task is purely one of research; research desires nothing but the
truth, knowing full well that its goal can never be attained and that
its path is therefore without end.

I wish to thank the General Secretary of the Tribunal for having placed
at my disposal documents of a decisive nature and very important
literature. Without this chivalrous assistance it would not have been
possible, under the conditions obtaining at present in Germany, to
complete my work. The literature accessible to me originated
predominantly in the United States. Familiar as I am with the vast
French and English literature on this subject, which I have studied
during the last quarter of a century—I am, unfortunately, not
conversant with the Russian language—I believe, however, that I can
fairly say that no important concept has been overlooked, because in no
other country of the world has the discussion of our problem, which has
become the great problem of humanity, been more comprehensive and more
profound than in the United States.

This very fact has enabled me to forego the use of legal literature
published in the former German sphere of control. In this way even the
semblance of a _pro domo_ line of argumentation will be avoided.

Owing to the short time at my disposal for the purpose of this speech,
and at the same time in view of the abundance and complexity of the
problems with which I have to deal, it will not be possible for me to
cite all the documents and quotations I am referring to. I shall present
only a few sentences. Any other procedure would interrupt the train of
argument for the listener. I shall therefore submit to the Tribunal the
documents and literary references in the form of appendices to my
juridical arguments. What I am saying can thus quickly be verified.

The Charter threatens individuals with punishment for breaches of the
peace between states. It would appear that the Tribunal is accepting the
Charter as the unchallengeable foundation for all juridical
considerations. This means that the tribunal will not examine the
question whether the Charter, as a whole or in parts, is open to
juridical objections; yet such a question nevertheless continues to
exist.

If this is so, why, then, have any discussion at all on the main
fundamental legal problems?

The British chief prosecutor even made it the central theme of his long
address to examine the relationship of the Charter, where our problem is
concerned, to existing international law. He justified the necessity of
his arguments by saying that it was the task of this Trial to serve
humanity and that this task could be fulfilled by the Trial only if the
Charter could hold its own before international law, that is, if
punishment of individuals for breach of the peace between states was
established in existing international law.

It is, indeed, necessary to clarify whether certain stipulations of the
Charter may have created new laws, and consequently laws with
retroactive force.

Such a clarification does not serve the purpose of facilitating the work
of the historians. They will examine this, just as all the other
findings in this Trial, according to the rules of free research; perhaps
through many years of work and certainly without limiting the questions
to be put and, if possible, on the basis of an ever greater wealth of
documents and evidence.

Such a clarification is indispensable, if only for the reason that the
decision as to right and wrong depends, or may depend, thereupon, all
the more so if the Charter is considered legally unassailable.

Let us assume for the sake of argument that the Charter does not
formulate criminal law which is already valid but creates new, and
therefore retroactive, criminal law. What does this signify for the
verdict? Must not this be of importance for the question of guilt?

Possibly the retroactive law which, for instance, penalizes aggressive
war had not yet become fixed or even conceived in the conscience of
humanity at the time when the act was committed. In that case the
defendant cannot be guilty, either before himself or before others, in
the sense that he was aware of the illegality of his behavior. Possibly,
on the other hand, the retroactive law was promulgated at a time when a
fresh conscience was just beginning to take shape, although not yet
clear or universal. It is then quite possible for the defendant to be
not guilty in the sense that he was aware of the wrongfulness of his
commissions and omissions.

From the point of view of the European continental conception of penal
law, the fact that a person was not aware of doing wrong is certainly a
point which the Tribunal must not overlook.

Now the question as to whether the penal law contained in the Charter is
_ex post facto_ penal law does not present any difficulty as long as the
stipulations of the Charter are unequivocal and the prescriptions of
international law as applying to date are uncontested.

But what if we have regulations capable of different interpretations
before us or if the concepts of international law are the subject of
controversy? Let us take the first: A stipulation of the Charter is
ambiguous and therefore requires interpretation. According to one
justifiable interpretation the stipulation appears to be an _ex post
facto_ law; according to another, which can be equally well justified,
it does not. Let us take the second: The regulation is clear or has been
clarified by interpretation of the Court, but experts on international
law are of different opinions as to the legal position applying to date;
it is not certain whether we are not concerned with an _ex post facto_
law. In both cases it is relevant whether the defendant was conscious of
the wrongfulness of his behavior.

I intend to demonstrate how important these considerations are in this
Trial, and shall now begin the examination.

The starting points of the British and French chief prosecutors are
fundamentally different.

The British chief prosecutor argues as follows, if I understood him
correctly:

First, the unrestricted right of states to wage war was abolished in
part by the League of Nations Covenant, later as a general principle by
the Kellogg-Briand Pact, which continues to be the nucleus of world
peace order to this very day. War, thus prohibited, is a punishable
violation of law within and toward the community of nations, and any
individual who has acted in a responsible capacity is punishable.
Secondly, the indictment of individuals for breach of the peace,
although novel, not only represents a moral necessity, but is in fact
long overdue in the evolution of law; it is quite simply the logical
result of the new legal position. Only in outward appearance does the
Charter create new law.

And if I understood the British chief prosecutor correctly, he is
asserting that since the conclusion of the Pact of Paris there exists a
clear legal order based on the entire world’s uniform conviction as to
what is right. Since 1927 the United States have negotiated first with
France, then with the remaining Great Powers, with the exception of the
Soviet Union, and also with some of the smaller powers concerning the
conclusion of a treaty intended to abolish war. Secretary of State
Kellogg stated (in a note to the French Ambassador, 27 February 1928)
with memorable impressiveness what the Government in Washington were
striving for, namely:

The powers should renounce war as an instrument of national politics,
waiving all legal definitions and acting from a practical point of view,
plainly, simply, and unambiguously, without qualifications or
reservations.[1] Otherwise the object desired would not be attained: To
abolish war as an institution, that is, as an institution of
international law.[2]

After the negotiations had been concluded, Aristide Briand, the other of
the two statesmen from whose initiative springs that pact which in
Germany is often called the “Pact to Outlaw War,” declared, when it was
signed in Paris:

    “Formerly deemed a divine right and remaining in international
    law as a prerogative of sovereignty, such a war has now at last
    been legally stripped of that which constituted its greatest
    danger: its legitimacy. Branded henceforth as illegal, it is
    truly outlawed by agreement....”[3]

According to the conception of both leading statesmen, the Paris Pact
amounted to a change of the world order at its very roots, if only all,
or almost all, nations of the world—and particularly all the great
powers—signed the pact or adhered to it later on, which did actually
happen.

The change was to be based on the following conception: Up to the time
of the Kellogg-Briand Pact, war had been an institution of international
law. After the Kellogg-Briand Pact, war was high treason against the
order created by international law.

Many politicians and scholars all over the world shared this conception.
It is the definite basic conception of that unique commentary on the
League of Nations Covenant by which Jean Ray, far beyond the borders of
France, stirred the hearts of all practical and theoretical proponents
of the idea of preventing war.[4] It is also the basic conception of the
Indictment at Nuremberg.

Diplomacy and the doctrine of international law found their way back
into their old tracks after the first World War, after a momentary shock
from which they recovered with remarkable rapidity. This fact horrified
all those who were anxious to see the conclusions—all the
conclusions—drawn from the catastrophe.

Mankind had a “grand vision of world peace” then, as Senator Bruce
called it when the Pact of Paris was before the Senate for
ratification.[5] I know how much the personality and the achievements of
Woodrow Wilson are a subject of dispute. But the more detachment we
achieve, the clearer it becomes that he—by making fortunate use of his
own preparatory work and of that of others[6]—finally conceived and
presented to the humanity of the time an entirely brilliant train of
thought which is as right today as it was then, and which can best be
condensed as follows:

It is necessary to start afresh. The tragic chain of wars and mere
armistices termed peace must be broken. Sometime humanity must have the
insight and the will to pass from war to real peace, that is, to peace
which is good in its essence, founded on existing legal principles,
without regard to victory or defeat; and this peace, which is good in
its essence, must be maintained—and maintained in good condition—by an
organized union of states.

These aims can only be achieved if the most frequent causes of war are
eliminated, namely excessive armaments, secret treaties, and the
consecration—detrimental to life—of the _status quo_ as a result of
lack of insight on the part of the possessor of the moment.

Humanity did not follow this path. And it is not to be wondered at that
among those who fought against the instruments of Versailles, St.
Germain, Trianon, Neuilly, and Sèvres, be it in the camp of the
vanquished or in that of the victors, were the very ones who strove
after real, lasting peace. When the Governments of the South African
Union and Canada, in their replies to Secretary of State Hull’s
Principles of Enduring Peace of 16 July 1937, indicated in unusually
strong language that a revision of unjust and forcibly imposed treaties
was an indispensable precondition for real world peace, they took up one
of the basic views of the great American President.[7]

Humanity did not follow Wilson.

Even for the members of the League of Nations war remained a means for
settling disputes, prohibited in individual cases, but normal on the
whole. Jean Ray[8], as late as 1930, said:

    “The League of Nations did not prove to be a guide to the true
    order of peace, indeed it did not even prove to be a sufficient
    brake to prevent a complete backward movement into the former
    state. For the world did in fact slide back entirely.”

For this is the all-important factor in our problem of law. Before the
commencement of the second World War the whole system of collective
security, even in such scanty beginnings as it had made, had
collapsed;[9] and this collapse was acknowledged and declared expressly,
or by equivalent action, by three world powers—and, in fact, declared
with full justification. Great Britain clearly stated this at the
beginning of the war to the League of Nations. I shall show this
immediately.

The Soviet Union treated the German-Polish conflict simply according to
the rules of classical international law concerning debellatio. I shall
explain this shortly.

The United States declared their strict neutrality. I shall also explain
the import of this declaration.

The system of collective security has been the subject of much dispute.
In this matter involving the world’s conscience, which is of fundamental
importance in this very Trial, it cannot be a matter of indifference
that the system, rightly or wrongly, appeared in 1938 to such a
prominent specialist on international law as the American, Edwin
Borchard, to be absolutely inimical to peace and the offspring of the
hysteria of our age.[10] The collapse may have had various causes; it is
certain that the above-mentioned three world powers testified at the
beginning of September 1939 to the collapse—the complete collapse—and
that they did not, in fact, do so as a consequence of the German-Polish
war.

To begin with, on 7 September 1939 the British Foreign Office told the
Secretary General of the League of Nations[11] that the British
Government had assumed the obligation, on 5 February 1930, to answer
before the Permanent International Court of Justice at The Hague
whenever a complaint was filed against Great Britain, which would
include all cases of complaints which other states might lodge on
account of conduct whereby Great Britain in a war had, in the opinion of
the plaintiff, violated international law. The British Government had
accepted this regulation because they had relied on the functioning of
the machinery of collective security created by the League of Nations
Covenant and the Pact of Paris—because, if it did function properly,
and since Britain would certainly not conduct any forbidden wars, her
opponent on the contrary being the aggressor, no collision between
Britain and those states that were faithful to the security machinery
could possibly be caused by any action of Britain as a seapower.[12]
However, the British Government had been disappointed in this
confidence: Ever since the League Assembly of 1938 it had no longer been
possible to doubt that the security machinery would not function; on the
contrary it had, in fact, collapsed completely. A number of members of
the League had already declared their strict neutrality before the
outbreak of war:

    “The entire machinery intended to maintain peace has broken
    down.”[13]

I will proceed to show how right the British Government were in the
conclusions they drew. It should not be forgotten that the British
Premier, Mr. Neville Chamberlain, had already proclaimed, on 22 February
1938 in the House of Commons, that is, before the so-called Austrian
Anschluss, the complete inefficiency of the system of collective
security. He said:[14]

    “At the last election it was still possible to hope that the
    League might afford collective security. I believed it myself. I
    do not believe it now. I would say more: If I am right, as I am
    confident I am, in saying that the League as constituted today
    is unable to provide collective security for anybody, then I say
    we must not delude ourselves, and, still more, we must not try
    to delude small weak nations into thinking that they will be
    protected by the League against aggression and acting
    accordingly, when we know that nothing of the kind can be
    expected.”

The Geneva League of Nations was “neutralized,” as Noel Baker politely
expressed it later in the House of Commons.[15]

Secondly, in view of the correct conclusions drawn by the British
Government and expressed in their note of 7 September 1939 to the League
of Nations, it is no wonder that the Soviet Union treated the
German-Polish conflict in accordance with the old rules of power
politics. In the German-Russian Frontier and Friendship Pact of 28
September 1939 and in the declaration made on the same day in common
with the Reich Government,[15a] the Moscow Government bases its stand on
the conception of the _debellatio_ of Poland, that is, the liquidation
of Poland’s government and armed forces; no mention is made of the Pact
of Paris or the League of Nations Covenant. The Soviet Union takes note
of the liquidation of the Polish state machinery by means of war, and
from this fact draws the conclusions which it deems right, agreeing with
the Reich Government that the new order of things is exclusively a
matter for the two powers.

It was therefore only logical that in the Finnish conflict, during the
winter of 1939-1940, the Soviet Union should have taken its stand on
classical international law. It disregarded the reactions of the League
of Nations when, without even considering the application of the
machinery of sanctions and merely pretending to apply an article of the
Covenant referring to quite different matters, that body resolved that
the Soviet Union had, as an aggressor, placed itself outside the
League.[16] The report of the Swiss Federal Council of 30 January 1940
to the Federal Assembly endeavored to save the face of the League which
was excluded from all political realities.

Thirdly, the President of the United States stated on 5 September 1939
that there existed a state of war between several states with whom the
United States lived in peace and friendship, namely, Germany on the one
hand, and Great Britain, France, Poland, India, and two of the British
dominions on the other. Everyone in the United States was required to
conform with neutrality regulations in the strictest manner.

Since the time of the preliminary negotiations, it was a well-known fact
in the United States that Europe, and particularly Great Britain and
France, saw the main value of the Pact to Outlaw War in the fact that
the United States would take action in case of a breach of the pact. The
British Foreign Secretary stated this on 30 July 1928, that is, 4 weeks
previous to the signing of the pact. During the deliberations of the
American Senate on the ratification of the pact, Senator Moses drew
particular attention to this.[17] Senator Borah affirmed at the time
that it was utterly impossible to imagine that the United States would
calmly stand by.[18] After the discredit resulting from the failure of
the policy of collective security in the case of Manchuria and Abyssinia
the world had come to understand the now famous “quarantine” speech of
President Franklin D. Roosevelt on 5 October 1937 and his “Stop Hitler!”
warnings before and after Munich to mean that the United States would
act on the next occasion. The declaration of neutrality of 5 September
1939 could therefore only mean: Like Great Britain and the Soviet Union,
the United States accepts as a fact the collapse of the system of
collective security.

This declaration of neutrality has often been looked upon as the death
blow to the system. The Washington Government would be entitled to
reject such a reproach as unjustified. For the system had already been
dead for years, provided one is prepared to believe that it was ever
actually alive. But many did not realize the fact that it was no longer
alive until it was brought into relief by the American declaration of
neutrality.

By 1 September 1939 the various experiments, which had been tried since
the first World War with a view to replace the “anarchic world order” of
classical international law by a better, a genuine, order of peace, were
over, that is, to create in the community of states a general statute
according to which there would be wars which are forbidden by law and
others which are countenanced. These experiments, in the opinion of the
major powers of the time, had failed. The greatest military powers of
the earth clashed in a struggle in which they pitted their full strength
against one another. For the proponents of a materialistic conception of
history this meant the second phase in a process developing according to
inexorable laws, whereby history swept away all diplomatic and juridical
artifices with supreme indifference.

The majority of international lawyers throughout the world maintained
that in universal international law as at present applied, there exists
no distinction as to forbidden and nonforbidden wars.

Hans Kelsen set this forth in 1942 in his paper _Law and Peace in
International Relations_, which he wrote after painstaking research into
literature. He himself belongs to the minority who are prepared to
concede a legal distinction between just and unjust wars, so that his
statement carries all the more weight.

Now we must ask: Are we in point of fact right in speaking of the
collapse of the system of collective security? This would presuppose
that such a system at one time existed. Can that really be maintained?
This is a question of the greatest importance for this Trial, in which
the existence of a world-wide consciousness of right and wrong is taken
as the basis for the indictment for breach of the peace.

Let us recall the tragedy of the Kellogg-Briand Pact, that tragedy from
which all those have suffered so much who rejoiced when the pact was
concluded and who later, after a first period of depression, hailed the
Stimson Doctrine as a long overdue step essential for the achievement of
real peace and as an encouraging omen of fresh progress.

The United States had a great goal in view in 1927 and 1928, as I
already mentioned. In the League of Nations the problem had been tackled
only half-heartedly and with half measures, and this had perhaps done
more harm than good to the cause of real peace. The Geneva Protocol had
failed. Kellogg now wanted to overcome all the difficulties inherent in
the problem and bring the world round by vitality and determination. The
pact as published, with its two articles containing the renunciation of
war and the obligation of peaceful settlement, seemed to still the
yearning of humanity eager for some deed.

But the difficulties it was desired to surmount are in part rooted in
the problem, and no rules laid down by any legislator will ever fully
eliminate them. For even if unambiguous criteria existed, who among
fallible mankind would have the authority to give a decision in case of
dispute? We do not even possess unambiguous criteria for aggression and
defense.[19] This holds good both for the so-called political concept,
which is in a way natural, and for the legal concept or concepts of
aggression and defense.

Yet these were not the only difficulties pointed out, explicitly and
implicitly, by the French Government in the preliminary negotiations for
the pact; they did so with the full title[20] of one who knows Europe
and its ancient historical heritage just as the United States Government
knows America and its vastly different history.

When the world came to know the notes exchanged during the preliminary
negotiations with all their definitions, interpretations,
qualifications, and reservations, it became manifest to what extent the
opinions of the governments differed behind that wording. One saw the
Soviet Government’s frank—even scathing—criticism of the refusal of
the Western Powers to disarm and thus create the essential precondition
for an effective policy of peace and generally of the vagueness of the
treaty;[21] but especially of the famous British reservation of a free
hand in certain regions of the world, that reservation which has often
been called the British Monroe Doctrine or the Chamberlain Doctrine;[22]
and one knew that in reality there existed only formal agreement behind
the signatures and that no two powers were implying exactly the same
thing by the treaty. Only on one thing did complete agreement exist: War
in self-defense is permitted as an inalienable right to all states;
without that right, sovereignty does not exist; and every state is sole
judge of whether in a given case it is waging a war of self-defense.

No state in the world at that time was prepared to accept foreign
jurisdiction concerning the question of whether its decisions on basic
questions of its very existence were justified or not.

Kellogg had declared to all the nine states participating in the
negotiations, in his note of 25 June 1928:[23]

    “...The right of self-defense...is inherent in every sovereign
    state and is implicit in every treaty. Every nation...is alone
    competent to decide whether circumstances require recourse to
    war in self-defense.”

The friends of peace were cruelly disappointed. What was the use of such
a treaty anyway? They were only too right. Very soon afterward they
heard with even greater grief of the course of the discussions in the
American Senate. The ratification was, it is true, passed with 85 votes
against 1, with a few abstentions; but if, behind the signatures of the
contracting states there was no material agreement, there was even less
behind the result of the vote in the Senate of that world power which
was, as far as the conception and initiative was concerned, the leading
one.

The discussions in the Senate, which will remain memorable for all time
because of their earnest and profound character, showed—and several
senators expressly said so—that the opinions of the senators were
oscillating between two poles which were worlds apart. For some the
treaty really meant a turning-point in world history; to others it
appeared worthless, or at best a feeble or friendly gesture, a popular
slogan, a sort of international embrace; to yet others as fertile soil
for all the wars of the future, a gigantic piece of hypocrisy, as the
legalization of war or even of British world control, or as a guarantee
of the unjust _status quo_ of Versailles for France and Great Britain.

Some senators criticized the utter vagueness of the stipulations of the
treaty even more bitterly than the Russian note. And if Kellogg’s
declaration about the right of self-defense, which, according to the
will of the signatory states, was an integral part of the treaty, was
taken literally: What kind of war was then forbidden?[24] Sarcastic and
ironical words were used in the Senate.

Nothing was gained by this Paris Pact if everything were to remain as at
its conclusion. In the opinion of the great American expert on
international law, Philip Marshall Brown, the pact unwittingly
engendered by its ineptness the horrible specter of “undeclared
war.”[25]

Those, Germans or non-Germans, who fought against Versailles because
progress was blocked, and those, Germans or non-Germans, who criticized
the League of Nations because it did more harm than good to the will
toward progress, had all rejoiced for nothing at the end of August 1928.
The decisive step had not been taken.

But above all the one thing which, though not sufficient in itself, is
indispensable if a guarantee of peace is really to be created, the one
thing that is necessary in the unanimous opinion of all who reckon with
human frailty, was never tackled: To create a procedure by which the
community of states, even against the will of the possessor, can change
conditions that have become intolerable, in order to provide life with
the safety valve it must have if it is to be spared an explosion.

The individual state, if at all, can avoid revolutions only by good
legislation and an early adjustment of order to changing conditions; and
the same is true of the community of states. Wilson also had this
fundamental principle in mind, as we saw. One of the great British
experts on international law, one of the enthusiastic, unconditional,
and progressive adherents of the Paris Pact, McNair, took this into
account too when, in 1936, he wanted to see placed beside collective
force the collective and peaceful revision of conditions which had
become dangerous.[26] And it was also taken into account by the American
experts on international law, Borchard[27] and Fenwick,[28] in their
warning illustration of the situation as regards international law
shortly before the second World War. The Reich Government, by the way,
had pointed out this problem, which overshadowed all others, in
Stresemann’s note to the American Ambassador, dated 27 April 1928, when
unconditionally agreeing to Kellogg’s proposal.[29]

Later, the problem of “collective revision” was never seriously tackled.
This is not surprising, if only because the very character of such a
procedure would presuppose renunciation of their sovereignty by the
states. And can such a renunciation be considered in the times we live
in? In Philip Brown’s melancholic opinion—“less than ever.”[30] For
that reason a real forward step in the question as to how war could
legally be outlawed was impracticable.

In spite of these intricate complications the Government of the United
States and the League of Nations did a great deal to comply with the
urgent demands of the nations. They subsequently tried to give the pact
a precise content, and “teeth.” The doctrine of international law
provided suggestions for this and checked it. Although it remained
completely unsuccessful, we shall have to trace this process briefly,
because the seed for the ideas contained in the Indictment are to be
found here, insofar as its line of argument is not a political or
ethical but a legal one.

In its ban on aggression, the Paris Pact unquestionably starts from the
political concept of aggression. But that is quite indefinite. Shotwell
and Brierly, among others, tried to assist immediately by deducing a
legal concept of aggression from the second article of the treaty, which
establishes the obligation to follow a procedure of peaceful
settlement.[31] We can leave open the question whether it is permissible
to apply this interpretation to the treaty. In practice nothing is
gained by doing so; one kind of difficulty is simply put in the place of
another. There are no fewer obscurities. Measures for peaceful
settlement presuppose good will on both sides; what if that is lacking
on one side or the other? And what still constitutes a measure of
peaceful settlement, and what no longer does? The Russian Government
were quite right in their note of 31 August 1928 on the Kellogg-Briand
Pact when they brought up this question.

Other attempts to help tried to develop a completely new world
constitution out of the entirely vague pact by way of logic. They are
connected with the name of the American Secretary of State, Stimson, and
with the work of the Budapest meeting of the International Law
Association in 1934.[32] In order to understand this, it will be found
necessary to assume that the Kellogg Pact really did bring about, in a
legally conceivable manner, the unambiguous and unconditional
renunciation of war. Then, of course, there exists no longer any right
to wage wars as and when one likes. War waged in defiance of this
prohibition is an offense against the constitution of the community of
states. We are immediately faced by the question: Can the legal position
of a state which attacks contrary to law be the same as that of a state
which is being attacked contrary to law?

If one answers “no,” as does for instance the influential French
commentator of the League of Nations Covenant, Jean Ray,[33] does not
this mean the elimination of the most important fundamental principles
of classic international law?

(1) Do the international laws of war—which, after all, spring from the
right to wage war freely and from the duel-like character of war and
certainly from the equality of the belligerents before the law—apply
for the qualification of the acts of the belligerent powers against one
another?

(2) Is it possible, or indeed permissible, that neutrality should still
exist in such a war?

(3) Can the result of the war, assuming that the aggressor is
victorious, be valid under law, especially when compressed into the form
of a treaty, or must not the community of states deprive the aggressor
of the spoils of his victory by a policy of nonrecognition? Should there
not be, or must there not be, joint coercive action by the states
against the aggressor?

It must be noted that not even theoretical law has drawn all possible
conclusions. The practice of the states, after a few tentative
beginnings in isolated points, never came to a definite conclusion in a
single case.

With regard to the first point, the validity of the international laws
of war during a war, whatever its origin, has never so far been
seriously disputed by any state. Any doubts that arose were cleared up
in a way which allowed of no misunderstandings. I draw attention to
Resolution Number 3 of the League of Nations Assembly of 4 October 1921
and to the report of the Committee of Eleven of the League of Nations
for the adaptation of the Covenant to the Pact of Paris.[34]

The aggressor state has the same rights and duties in a war as the
attacked nation, that is, those laid down by the traditional
international laws of war. The French chief prosecutor appears to wish
to deviate from this line, although he does not seem disposed to draw
the full conclusions. However, I do not see any tendency to deviate from
the present path even in the most recent practice of states.

With regard to the second point:

Attempts have been made to deny the obligation to remain neutral and, in
fact, finally to establish for the states not involved the right of non
neutrality and even the right to wage war against the aggressor. Some
statesmen and scholars have devoted themselves just as passionately to
undermining, and even to outlawing, the right to neutrality as other
statesmen and scholars have spoken in favor of its undiminished
continuance.[35] The clearer it became that the whole system of
collective security failed to function in those particular cases which
were of decisive importance, namely, where steps would have had to be
taken against a great power, the more the idea of neutrality asserted
itself with fresh vigor. The complete discredit attaching to the League
of Nations and the system of the Kellogg-Briand Pact since the
Abyssinian conflict put classical international law back into its old
position. In 1935 Switzerland declared her unrestricted neutrality;[36]
Belgium, Denmark, Finland, Luxembourg, Norway, Holland, and Sweden
followed with their declaration at Copenhagen on 24 July 1938.[37] The
failure of the League of Nations was the reason quite openly given.

With reference to the third point:

The idea underlying the policy of nonrecognition is that the states not
involved in a conflict should conduct themselves as members of the
community of states, that is, they should protect the constitution of
the community of states by refusing to recognize the fruits of victory,
should the victor have been the aggressor. The situation he has created
by force should not even seem to become a legal situation. He will thus
be deprived of what he has gained, and one of the main inducements to
wage war will thereby be eliminated. Such a policy of nonrecognition is
undoubtedly not enough to guarantee by itself a system of collective
security, but it is an indispensable part of such an order. There can be
no dispute about this. The Brazilian representative, Senhor Braga,
gained merit by proposing, at the second League Assembly in 1921, that
such a policy be followed by the members of the League of Nations under
the name of a “universal legal blockade” (_blocus juridique
universel_).[38]

The Finnish representative, M. Procope, interpreted Article 10 of the
Covenant in this sense in 1930 before the League Assembly.[39] The notes
by the American Secretary of State, Stimson, of 7 January 1932 to China
and Japan[40] made this idea echo throughout the world. Their contents
are commonly referred to as the Stimson Doctrine. The League of Nations
accepted the Doctrine as a resolution of the Assembly on 11 March
1932.[41] The concept was later the focal point of the Pact of Rio de
Janeiro of 10 October 1933 and of the Budapest Articles of 10 September
1934.

The conflict between Italy and Abyssinia in 1935-36 became the great
test case,[42] which decided the fate of the system of collective
security. The League of Nations declared a member, which was a great
power, to be the aggressor and decreed economic sanctions but then
shrank from coercive military measures and finally, after Italy’s
victory, struggled painfully in debates on procedure, especially at the
18th Assembly of the League, to find an answer to the question as to how
the League, without openly betraying its constitution, could cross the
attacked member, the minor power of Abyssinia, off the list of existing
states and recognize it as part of the Italian Empire. The United
States, too, did not enforce the Stimson Doctrine but remained strictly
neutral.[43],[44]

It is necessary to realize all this; and also to know that the British
Government, on 20 February 1935, politely but firmly refused, through
Lord Chancellor Viscount Sankey,[45] to accept the logical explications
and paid tribute to the old truth: “It is not logic but history that
creates law.”[46] On a later occasion, when Secretary of State Cordell
Hull had explained the principle of American policy to all the powers on
16 July 1937,[47] the Portuguese Government issued a warning against
“the abstract and generalizing tendency of jurists”; it warned against
attempts to “find a single formula” and against not studying historic
facts sufficiently.[48]

We therefore come to the conclusion that in the actual relations between
states there existed—quite a number of years prior to 1939—no
effective general ruling of international law regarding prohibited war.
No such general ruling existed so far as the leading statesmen and the
peoples were aware.

This is, in fact, the ultimate reason why the system of specific rulings
on international law was followed to an ever-increasing extent. Two
states would thus conclude treaties, in full knowledge of their
particular historical conditions and with a view to guarantee peace
between each other.

Now, during the second World War the United States Government decided to
help Great Britain. Great Britain was able to acquire destroyers, and it
later received the assistance of Lend-Lease. The American public
recognized this act of assistance as being essentially no longer
neutral; it was regretted by some, welcomed by others, sometimes
attacked and sometimes defended. The supporters of the measures before
the American public, above all Stimson and Cordell Hull, quite rightly
refrained from justifying them as consistent with neutrality. On the
contrary, they took their stand on the Pact of Paris as interpreted by
the Budapest Articles.[49] As we saw, this would, according to Viscount
Sankey’s indisputably correct conception of the sources of international
law, have been wrong as far back as 1935.

After the developments which had taken place since Italy’s victory over
Abyssinia, such discussions were entirely outside the field of legal
realities. Their purpose was to resolve internal dissensions in America
and for that very reason could not have been of direct importance for
international law. Even had these discussions taken place between
states, they could at most have helped to create law. But is it actually
necessary to assert or prove that such discussions could not have
created, in the midst of the great struggle, a law to attain which so
many efforts—efforts which were proved to have been Utopian—were made
in vain in peacetime?

In this Court many ways of legal thinking meet—ways which are in part
very different. This leads to a number of ineradicable differences of
opinion. But no manner of legal thinking anywhere on earth, from the
most ancient times to the most recent, could or can make possible
arguments which contradict the very nature of law as a social order of
human life arising out of history. If several governments accept
articles about whose contents they are of different opinions and if
these articles then find no real application in the practice of these
governments—which is not to be wondered at considering the
circumstances under which they arose—and if logicians then interpret
these articles, while the practice of governments rejects these
interpretations either expressly or tacitly, then one will simply have
to resign oneself to this, inasmuch as one proposes to keep to the task
of legal appreciation, however much the goal may seem worth striving
for, politically or morally.

But let us forget for a moment the bitter realities of those years
following upon the Italo-Abyssinian conflict. Let us suppose for a
moment that a general and unambiguous pact had existed, accepted and
applied by the contracting parties in fundamental and factual agreement.
Would the liability of individuals to punishment for the breach of such
a treaty be founded in international law?

No—not even the liability of the state to punishment, let alone that of
individuals.

The breach of such a treaty would not be any different, under existing
international law, from any other violation of international law. The
state violating a treaty would be committing an offense against
international law, but not a punishable act.[50] Attempts were
occasionally made to deduce from words _délit_ (offense), _crime
international_ (international crime), and _condamnation de la guerre_
(condemnation of war) the existence of an international criminal law
dealing with our case. Such conclusions are based on wrong premises.[51]
Every lawyer knows that any unlawful behavior can be called a _délit_
(_delictum_), not only punishable behavior. And the word _crime_ is used
even entirely outside the legal sphere. And this is precisely the case
here. When in 1927, on Poland’s application, the League of Nations
Assembly declared war to be a _crime international_, the Polish
representative expressly stated that the declaration was not actually a
legal instrument but an act of moral and educational importance.[52] The
endeavor to organize a universal world system of collective security on
a legal basis failed. But this does not mean that the numerous bilateral
treaties whose purpose it is to preclude wars of aggression between the
two partners became inapplicable. One will have to examine whether the
parties to the treaty may have made the existence or continued existence
of a general machinery of collective security the prerequisite for the
validity of the treaty.

For unilateral assurances of nonaggression the same holds good as for
bilateral treaties.

Many bilateral nonaggression pacts were concluded and several unilateral
assurances were given. In some cases a political, in others a legal
concept of aggression, or even a number of such legal concepts may
determine right and wrong.

The Reich also concluded a series of such pacts. They have been cited by
the Prosecution in argument. One must examine whether all these treaties
were still in force at the critical moment, and this examination will be
left to the individual defendant’s counsel. But if the Reich did attack,
in some specific case, in breach of a nonaggression pact which was still
valid, it committed an offense in international law and is responsible
therefor according to the rules of international law regarding such
offenses.

But only the Reich—not the individual, even if he were the head of the
State. This is beyond all doubt, according to existing international
law. It is unnecessary even to speak about this. For up to the most
recent times not even the possibility was mentioned, either in the
Manchurian, or in the Italo-Abyssinian, or in the Russo-Finnish
conflict, of instituting criminal proceedings against those people who
were responsible, on the Japanese, Italian, or Russian side, for
planning, preparing, launching, and conducting the war, or who simply
participated in these acts in any way. And it was certainly not because
matters had, paradoxically enough, not been thought out to the end, that
they were not prosecuted. They were not prosecuted because this cannot
take place as long as the sovereignty of states is the organizational
basic principle of interstate order.

THE PRESIDENT: I think this would be a convenient time to break off.

                        [_A recess was taken._]

DR. JAHRREISS: One thing or another[53]—should things reach the point
where, according to general world law, the men who participated in the
planning, preparation, launching, and conduct of a war forbidden by
international law could be brought before an international criminal
court, the decisions regarding the state’s final problems of existence
would be subject to super-state control. One might, of course, still
term such states sovereign; but they would no longer be sovereign. In
his paper, written late in 1943, which I have already mentioned several
times and which was prepared after the Moscow conference of 1 November
1943, Kelsen again and again repeats that in questions of breach of the
peace, the liability of individuals to punishment does not exist
according to the general international law at present valid and that it
cannot exist because of the concept of sovereignty.[54]

For Europeans, at any rate, the state has during the last four
centuries, especially following the pronounced advance made by the idea
of the national state, achieved the dignity of a super-person.

Of course, acts of state are acts of men. Yet they are in fact acts of
state, that is, acts of the state carried out by its organs and not the
private acts of Mr. Smith or Mr. Müller.

What the Prosecution is doing when, in the name of the world community
as a legal entity, it desires to have individuals legally sentenced for
their decisions regarding war and peace, is, when facing the issue from
the angle of European history, to look upon the state as one would look
upon a private individual; indeed, more than that: What it is doing is
destroying the spirit of the state. Such an indictment, the moral
justification of which is not my concern—such an indictment is, as we
have already shown, incompatible with the very nature of sovereignty and
with the feeling of the majority of Europeans. It seems, indeed, as
though not only Europeans feel that way. In 1919, in Paris, it was the
American delegates at the War Guilt Investigation Committee who opposed
most strongly any legal sentence on the Kaiser for the very reason of
the incompatibility of such a procedure with the sovereignty of the
State.[55] And it is impossible to underline the idea of sovereignty
more strongly than Kellogg did 8 years later during the negotiations in
connection with the Pact of Paris, when he declared, as I have already
said, “Every state is the sole judge of its behavior with regard to
questions affecting its very existence.”

There are epochs which idolize the sovereignty of the state; others
deprecate it. Certain epochs have done both at the same time—ours does
so. Perhaps we are living in a period of transition. Perhaps a
transformation of values is taking place. Perhaps world community will
become the supreme political value for the peoples in place of their own
particular states, which, at any rate, held this position hitherto.
Perhaps we shall reach a point where the unleashing of a war deserving
moral and also legal condemnation will, for the general legal
conscience, constitute high treason against the world community. Perhaps
we shall reach a point where it will be permissible, or even compulsory,
to betray a government starting such a war to foreign countries without
this being termed high treason toward one’s own. At the moment there is
in no nation a majority, let alone unanimity, in support of this
conclusion.

The punishment of individuals by the legal community of nations for
breach of the peace between states can thus be ordered only provided the
fundamental principles of international law as at present valid and the
scale of values as for centuries they have been firmly rooted in the
feeling of the European nations are abandoned—that scale of values
according to which the state, one’s own sovereign state, forms the
indispensable foundation for free personality.

The Prosecution breaks up in its own mind the German State at a time
when it stood upright in its full strength and acted through its organs.
It must do so if it desires to prosecute individual persons for a breach
of the peace between states. It must turn the defendants into private
individuals. Then again the defendants—as it were, on the private
level—are strung together into a conspiracy by legal concepts rooted in
Anglo-Saxon law and alien to us. They are placed on a pedestal provided
by the many millions of members of organizations and groups which are
designated as criminal, thereby once more allowing them to appear as an
“ultra-individual” value.

Insofar as the Charter supports all this by its regulations, it is
laying down fundamentally new law, if—concurring with the British chief
prosecutor—one measures against existing international law. That which,
originating in Europe, has finally spread to the whole world and is
called international law is, in essence, a law of the co-ordination of
sovereign states. Measuring the regulations of the Charter against this
law, we shall have to say: The regulations of the Charter deny the basis
of this law; they anticipate the law of a world state. They are
revolutionary. Perhaps, in the hopes and yearnings of the nations, the
future is theirs.

A lawyer, and only as such may I speak here, will merely have to
establish that they are new—revolutionarily new. The laws regarding war
and peace between states provided no room for them and could not do so.
Thus they are criminal laws with retroactive force.

Now the French chief prosecutor—if I understand correctly—recognized
the sovereignty of states in his profoundly moving speech and quite
rightly saw that an unbridgeable gulf exists between the Charter and
existing international law where it desires to see individuals punished
as criminals for breach of international peace. He therefore transposes
the Trial from the plane of international law to that of constitutional
law. It might have happened that a German State would have settled
accounts after the war with those people who were responsible for
launching the war. Since the whole life of the German people is
paralyzed today, those foreign powers, who jointly on the basis of
treaties have territorial power in Germany, are undertaking this
settlement of accounts. The Charter has laid down the rules which are to
guide the Court in its investigation and verdict.

We can leave the question open as to whether this concept is legally
right or not. Even if it is right, our question is not modified thereby.
When looking at the problem from this point of view, no differently from
that of international law, we must know how far the Charter creates
penal law with retroactive force. But we must now measure the
regulations of the Charter not only against the international law which
was valid for Germany and was recast into national law, as we say, but
also against that national criminal law which was binding on the
defendants at the time of the deed. It is, after all, quite possible for
a state, a member of the community of states, to be more cosmopolitan in
its criminal law than actual international law. Some rule of the
Charter, although new with regard to existing international law, may
correspond to an already existing national law, so that it would not
constitute criminal law with retroactive force. So how was the breach of
peace between states—particularly the breach of nonaggression
pacts—treated in that national criminal law to which the defendants
were subject at the time of the preparation and launching of the war?

It is possible that in some state those people might be threatened with
punishment who prepared or launched or waged a war in opposition to the
international obligations of that state.[56] That would, it is true, be
completely impractical, for the result of a war determines the internal
settlement of accounts. No criminal court will threaten a victorious
government, whereas, in case of defeat, the defeat itself provides the
measure for such settlement. In any case the regulations of the Charter
regarding punishment for breach of the peace between states are novel
for the national criminal law to which the defendants were subject at
the time of the deed. If one is not prepared to understand the phrase
_nulla poena sine lege praevia_ as it is understood on the European
continent, that is, as meaning that law in the sense of _lex_ is a rule
laid down by the state, a state law, but holds the opinion which—as far
as I can see—is peculiar to English legal thinkers, that law in the
sense of lex can also be a deeply rooted rule of ethics or morality,
then we still have one question left: As things happened to be, did the
defendants—formerly ministers, military leaders, directors of economy,
heads of higher authorities—at the time of the deed feel, or could they
even have felt that a behavior which is now made punishable by a
retroactive law was originally in violation of their duty? The answer to
this question cannot be given without insight into the nature of the
constitution of the German Reich at the moment of the deed.

The German Reich was incorporated into the community of states in the
form and with the constitution which it happened to have at any given
moment. Such is the case with every member of the community of states.
The United States and the British Empire, the Union of Soviet Socialist
Republics and the French Republic, Brazil and Switzerland, stand in the
framework of the family of nations with such a constitution as they
happen to have at the time.

The Prosecution, with full justification, has tried to convey a picture
of this concrete legal structure of the Reich. Without trying to obtain
such a picture, no one in this Trial will be able to arrive at a
decision regarding right and wrong. In addition it seems to me that many
ethical questions which have been raised here require such an endeavor
to be made. However, I am afraid that with the picture presented by the
Prosecution one will not come as close to the truth as is possible,
notwithstanding the complex nature of the subject.

The Prosecution is based upon the conception of a conspiracy to conquer
the world on the part of a few dozen criminals. The German State, if one
looks upon things in this way, becomes a mere shadow or tool. But this
State had long been in existence; no one could set aside the enormous
weight of its history. A number of facts in its history, domestic and
especially foreign, accounted for Hitler’s rise to power or facilitated
it for him, while there were other things in this history that guided,
urged, limited, or restrained Hitler in his choice of aims and means,
and helped to decide the success or failure of his measures and
undertakings.

The Prosecution was certainly right in laying great stress on the
so-called Führer Principle. This Führer Principle has, in fact, for the
eyes and even more for the ears of the German people and of the world in
general, been the organizational guiding principle in the development of
the Reich constitution after 1933.

It has never been unambiguous, and it considerably changed in character
during the course of the years. In human life leading and dominating
present inherent contradictions. There exists one, as it were, soulless,
mechanical way of directing mankind, which is to dominate, to rule by
issuing commands; and there is another one, which is to precede by
setting an example and being followed voluntarily, which is to lead or
whatever one wishes to call it. This differentiation between two
fundamentally different methods of directing men is often already
complicated by the words used; in the German language, for instance this
is so because “leading” is sometimes substituted for unconscious
domination, while domination is occasionally called leading. The
differentiation is rendered even more difficult by the fact that leading
may alternate with domination in relations between the same persons or
by the fact that methods which are actually applicable to leading are
used in dominating and vice versa. Every state has been, is, and will
be, faced by the question of how it is to link up both these methods, so
that they may complement, promote, and keep a check on each other. Both
methods appear continually and everywhere. There has never yet been a
truly dominating ruler who was not also a leader, although minor rulers
are also subject to this law. And the Hitler regime did bring about—at
least to begin with—a synthesis of both methods which had at least the
appearance of being tremendously efficient.

To this synthesis has been attributed—perhaps not unjustly—much of
what the world registered with wonder, sometimes approvingly, but more
often disapprovingly, as the result of an unheard-of mobilization,
concentration, and increase in the energies of a nation.

This remarkable synthesis of leading and dominating found its maximum
expression in the person of Hitler himself, in his acts of leadership,
for instance, in his speeches, and in his commands. Hitler’s acts of
leadership and commanding became the motive power of the German
political life of that time. Above all, this phenomenon must be taken
into correct account. It is of absolutely decisive importance in judging
the enormous mass of facts which has been produced here. With all due
caution, which is natural to men accustomed to think along scientific
lines and imbues them with an almost unconquerable mistrust of any
attempt to comprehend and evaluate events which have happened so
recently, one is perhaps entitled to vouchsafe this assertion: In the
course of the years Hitler accorded the act of command an increasingly
favored place to the detriment of acts of leadership and finally brought
it so much to the fore that commands, not the act of leadership, became
the all-decisive factor. Hitler, the man of the people, became more and
more the dictator. The speeches in which he repeated himself ad nauseam,
even for his most willing followers, and shrieked out, to the irritation
even of the most faithful disciples, became rarer, while the legislative
machine worked faster and faster. A later age will perhaps realize to
what extent the great change in the attitude of the German people toward
Hitler, which was beginning to show even before the war, was the cause
or effect of this modification.

Whereas on a superficial question, that is, the question as to how he
wished to be designated, Hitler urged not to be called “Führer and Reich
Chancellor” any longer, but only “Führer,” the way in which the State
was being governed was taking the exactly opposite path; leadership
disappeared more and more, and there remained naked domination. The
Führer’s orders became the central element of the German state edifice.

In the public hierarchy, this development was attended by an increase
rather than a decrease in Hitler’s power. The great majority of German
civil servants and officers had seen nothing behind the organized
leadership but a machinery of domination invested with a new label and,
if possible, an even more bureaucratic nature functioning side by side
with the inherited state machinery. When Hitler’s orders became the
Alpha and Omega, they felt themselves, so to speak, returned to the old
familiar path. The queer and puzzling apparition had gone.

They were back in their world of subordination. Nevertheless, this
development had given the Führer’s orders a special aura of sanctity for
them too; there was no contradicting the Führer’s orders. One could
perhaps raise objections; but if the Führer abided by his order, the
matter was decided. His orders were something quite different from the
orders of any official within the hierarchy under him.

Here we have the fundamental question in this Trial: What position did
Hitler’s orders occupy in the general order of Germany? Did they belong
to the type of orders which were disallowed by the Charter of this Court
as grounds for the exclusion of punishment?

It was perhaps harder for a lawyer who grew up in the habits of the
state founded on law than for other people to witness the slow and then
ever more rapid disintegration of that foundation of law supporting the
state; he never came to feel at home in the new order and always
remained half outside. Yet for that very reason he probably knows better
than anyone else the peculiarities of this new order, and he may attempt
to make them comprehensible.

State orders, whether they lay down law or decide individual cases, can
always be measured not only against the existing written and unwritten
law of the state concerned but also against the rules of international
law, morality, and religion. Someone, even if only the conscience of the
person giving the orders, will always ask whether the person giving the
order did not perhaps order something which he had no right to order or
whether he may not have formed and published his order by an
inadmissible procedure. Now an unavoidable problem for all domination
lies in this: Should or can it grant the members of its hierarchy, its
civil servants and officers, the right—or even impose on them the
duty—to examine at any time any order which demands obedience from
them, to determine whether it is lawful and to decide accordingly
whether to obey or refuse?

No form of rule which has appeared in history so far has given an
affirmative answer to this question. Only certain members of the
hierarchy were ever granted this right, and they were not granted it
without limits. Such was the case, for instance, under the extremely
democratic constitution of the German Reich during the Weimar Republic,
and it is again the case today under the occupation rule of the four
great powers over Germany.

Insofar as no such right of examination is granted to members of the
hierarchy, orders are binding upon them. All constitutional law,
including that of modern states, provides for acts of state which must
be respected by the authorities, even when defective. Certain acts
constituting rules, certain decisions on individual cases which have
acquired legal force, are held to be valid even when the person giving
the order has exceeded his competency or made a mistake in form.

If only because the process of referring to a still superior order
finally comes to an end, there must under every government exist orders
that are binding on the members of the hierarchy under all
circumstances, and therefore represent law to the officials concerned,
even though outsiders may find that they are defective as regards
content or form when measured against the previous laws of the state
concerned or against rules applying outside the state. For instance, in
direct democracies, an order given as the result of a plebiscite of the
nation is a fully valid rule or an absolutely binding decree. Rousseau
knew how much the _volonté de tous_ can be in contradiction to what is
right, but he did not fail to appreciate that orders by _volonté de
tous_ are binding.

In indirect democracies the resolutions of a congress, a national
assembly, or a parliament may have the same force.

In the partly direct, partly indirect democracy of the Weimar
Constitution of the German Reich the laws resolved by a majority of the
Reichstag large enough to modify the constitution and duly promulgated
under all circumstances were binding upon all functionaries, including
the independent courts of law, even though the legislator—willingly or
unwillingly—might have violated rules not imposed by the state but by
the Church or by the community of states. In the latter case the Reich
would have been guilty of an international offense, since it would have
failed to see to it that its legislation was in accordance with
international law. It would, therefore, have been responsible under the
international regulations regarding reparation for international
offenses. But until the law concerned had been eliminated in accordance
with the rules of German constitutional law, all officials of the
hierarchy would have had to obey it. No functionary would have had the
right, let alone the duty, to examine its legally binding nature with
the aim of obeying or refusing to obey it, depending on the result of
this examination.

Things are no different in any other state in the world. It never has
been and never can be different. Every state has had the experience of
seeing its ultimate orders, its supreme orders, which must be binding on
the hierarchy if the authority of the state is to subsist at all, on
occasion coming into conflict with rules not imposed by the state—to
divine law, to natural law, and to the laws of reason. Good governments
take pains to avoid such conflicts. To the great sorrow—indeed, to the
despair—of many Germans, Hitler frequently brought about such
conflicts. If only for this reason, his way of governing was not a good
one, even though it was for several years successful in some spheres.

One thing however must be said straight away: these conflicts never
affected the entire nation or the entire hierarchy—at least not
immediately—but always merely groups of the nation or individual
offices of the hierarchy. It was only some of the people concerned who
were fundamentally affected, the bulk being only superficially
involved—not to mention those conflicts that remained unknown to the
overwhelming majority of the people and of the hierarchy, those orders,
therefore, by which Hitler not only showed himself to be inhuman in
individual instances but simply put himself outside the pale of what is
human. Here is a purely academic question: Would Hitler’s power have
taken such deep root, would it have maintained itself, if these
inhumanities had become known to wider sections of the people and of the
hierarchy? There can be no answer: they did not.

Now in a state in which the entire power to make final decisions is
concentrated in the hands of a single individual, the orders of this one
man are absolutely binding on the members of the hierarchy. This
individual is their sovereign, their _legibus solutus_, as was first
formulated—as far as I can see—by French political science with as
much logic as eloquence.

After all, the world is not faced by such a phenomenon for the first
time. In former times it may even have appeared to be normal. In the
modern world, a world of constitutions based on the separation of powers
under the supervision of the people, absolute monocracy does not seem to
be proper in principle. And though this may not yet be the case today,
one day the world will know that the vast majority of intelligent
Germans did not think any differently on this matter from the majority
of intelligent people of other nations in and outside Europe.

Such absolutely monocratic constitutions can nevertheless come about as
the result of events which no individual can grasp in their entirety,
much less control at will.

This is what happened in Germany from the beginning of 1933 onward. This
is what happened gradually, stage by stage, to the parliamentary Weimar
Republic, which under Hindenburg was changed into a presidential
republic, in a process which partly furthered the development by acts of
state which stressed legal forms and which can be read in state
documents, but partly simply formed the rules by accepted custom. The
Reich law of 24 March 1933, by which the institution of Reich Government
Laws was created, whereby the separation of powers in the sense in which
it had been customary was, in practice, eliminated, was, according to
the transcript of the Reichstag session, passed with a majority
sufficient for altering the constitution. Doubts about the legality of
the law have nevertheless been raised on the grounds that a section of
the deputies elected had been prevented from attending the session by
the police, while another section of the deputies who were present had
been intimidated, so that only an apparent majority sufficient for
altering the constitution had passed the law. It has even been said that
no Reichstag, not even if everybody had been present and all of them had
voted, could have abolished the fundamental constitutional principle of
the separation of powers, since no constitution could legalize its
suicide. We need not go into this. The institution of government laws
became so firmly rooted as a result of undisputed practice that only a
formal jurisprudence entirely cut off from the realities of life could
have attempted to play off paragraphs against life and to ignore the
constitutional change which had taken place. And for the same reason
one’s arguments are faulty if one chooses to ignore how the institution
of government laws, that is, cabinet law, was later changed by custom
into one of several forms in which the Führer legislated. At the base of
every state order, as of any order whatsoever, there lie habit and
custom. From the time when Hitler became head of the State, practice
quickly resulted in Hitler heading both the hierarchy and the whole
people as the undisputed and indisputable possessor of all competency.
The result of the development was, at any rate, that Hitler became the
supreme legislator as well as the supreme author of individual orders.

He gained this position to some extent under the impression of the
surprising successes—or what were considered successes—in Germany and
abroad, especially during the course of the past war. Perhaps the German
people, although with great differences between North and South, West
and East, particularly easily falls a prey to actual power, particularly
easily obeys by orders, particularly well conforms to the idea of a
superior. Thus the whole process may have been rendered easier.

Finally, the only thing that was not quite clear was Hitler’s
relationship to the judiciary. For, even in Hitler Germany, it was not
possible to exterminate the idea that it was essential to allow justice
to be exercised by independent courts, at least in matters which concern
the bulk of the people in their everyday life. Up to the top group of
Party officials—this was shown by some of the speeches by the Reich
Leader of jurists, the Defendant Dr. Frank, as quoted here—there showed
resistance, which, it is true, was not very effective, when justice in
civil and ordinary criminal cases was equally to be subjected to the
_sic volo sic jubeo_ of one man. But apart from the judiciary, which in
the end also was beginning to succumb, absolute monocracy was complete.
The Reichstag’s pompous declaration about Hitler’s legal position, dated
26 April 1942,[56a] was actually only the statement of what had become a
fact long before. The Führer’s orders constituted law already a
considerable time before this second World War.

In this state order the German Reich was treated as a partner by the
other states, throughout the whole field of politics. In this connection
I do not wish to stress the form—so impressive to the German people and
so fatal to all opposition—which this treatment took in 1936 at the
Olympic Games, a show which Hitler could not order the delegations of
foreign nations to attend, as he ordered Germans to the Nuremberg Party
Rally with its state displays. Rather would I wish to point out that the
governments of the greatest nations in the world considered the word of
this “all-powerful” man to be the final decision, incontestably valid
for every German, and based their decisions on major questions on the
very fact that Hitler’s order was incontestable. To mention only the
most striking cases, this fact was relied upon when the British Prime
Minister, Mr. Neville Chamberlain, after the Munich Conference,
displayed the famous peace paper when he landed at Croydon. This fact
was pointed to when people went to war against the Reich as the barbaric
despotism of this one man.

No political system has yet pleased all people who live under it or who
feel its effects abroad. The German political system in the Hitler era
displeased a particularly large and ever-increasing number of people at
home and abroad. But that does not in any way alter the fact that it
existed. Its existence was in part due to the recognition from abroad
and to its effectiveness, which caused a British Prime Minister to make
the now world-famous statement at a critical period, that democracies
need two years longer than totalitarian governments to attain a certain
goal. Only one who has lived in the outer cold and as though outcast
among his own people amidst blindly believing masses, who idolized this
man as infallible, can tell how firmly Hitler’s power was anchored in
the nameless and numberless following who held him capable of doing only
what was good and right. They did not know him personally; he was for
them what propaganda made of him, and this he was so uncompromisingly
that everybody who saw him from close range and summed him up
differently clearly realized that opposition was utterly pointless and,
in the eyes of other people, did not even represent martyrdom.

Would it therefore not be a self-contradictory process if both the
following assertions were to be applied at the same time in the rules
governing this Trial? First, the Reich was the expression of the
despotism of this one man and for that very reason a danger to the
world. Secondly, every functionary had the right—in fact the duty—to
examine the orders of this man and to obey or not obey them, according
to the result of this examination.

The functionaries had neither the right nor the duty to examine the
orders of the monocrat to determine their legality. For them these
orders could never be illegal at all, with a single exception which will
be discussed later—an exception which, when carefully examined, will be
seen to be only an apparent one—namely, with the exception of those
cases in which the monocrat placed himself, according to the
indisputable axioms of our times, outside every human order and in which
a genuine question of right or wrong did not arise, so that no genuine
examination was called for, either.

Hitler’s will was the final authority for their considerations on what
to do and what not to do. The Führer’s order cut off every discussion.
Thus a person who as a functionary of the hierarchy invokes an order by
the Führer is not trying to claim exemption from punishment for an
illegal action but opposes the assertion that his conduct was illegal;
for it is his contention that the order with which he complied was
legally unassailable.

Only a person with full comprehension of this can have a conception of
the hard inner struggles which so many German officials had to fight out
in these years in the face of many a decree or resolution of Hitler’s.
For them such cases were not a question or a conflict between right and
wrong; disputes about legality sank into insignificance. For them the
problem was one of legitimacy; as time went on, human and divine law
opposed each other ever more strongly and frequently.

Whatever the Charter means by the orders which it rejects as grounds for
exemption from punishment, can this be meant to apply to the Führer’s
orders? Can they come within the meaning of this rule? Must one not
accept this order for what it was according to the interior German
constitution as it had grown, a constitution explicitly or implicitly
recognized by the community of states? Many Germans disapproved of
Hitler’s position of power from the very beginning; and to many Germans,
who welcomed it at first because they yearned for clear and quick
decisions, it later became repugnant. But that in no way affects the
following: Must not those people who did their duty in the hierarchy,
willingly or unwillingly, in accordance with the constitution, feel that
an injustice is being done to them if they were sentenced because of a
deed or an omission which was ordered by the Führer?

A community of states might refuse to accept or tolerate as members such
states as have a despotic constitution. Yet up to now this has never
been the case. If it is to be different in the future, the nondespotic
powers must take the necessary steps to prevent any member of the family
of states turning into a despotic power and to prevent any despotic
power from entering the family circle from outside. Today people are
realizing more and more clearly that this is the crux of our question.
The circumstances must be very special ones if a modern people is to let
itself be governed despotically, even when as well-disciplined as the
German people. But wherever such circumstances do exist, no domestic
countermeasures are of avail. In that eventuality only the outside world
can help. If, instead, the outside world prefers to recognize this
constitution, it is impossible to see where successful domestic
resistance can spring from. In pointing to these special circumstances
and to the recognition by the outside world, we are drawing attention to
facts for the existence of which, to take our case, no German was
responsible but which cannot be ignored when the question is asked how
all this was possible.

Attention must also be drawn to certain further facts without knowledge
of which one cannot fully grasp the fact that Hitler’s absolute
monocracy was able to establish such a terribly firm hold. Hitler
combined in his person all the powers of issuing legislative and
administrative orders of a supreme character, orders which could not be
questioned and were absolutely valid; but immediately below him the
power of the state was divided up into a vast mass of spheres of
competence. The dividing lines between these spheres, however, were not
always sharply drawn. In a modern state, particularly in major states of
our technical era, this cannot be avoided. The tendency to exaggerate
questions of competency is certainly no less marked in Germany than in
any other country. This certainly facilitated the erection of barriers
between the departments. Every department was jealously watching to see
that no other trespassed into its field. Everywhere it was prepared for
tendencies of other departments toward expansion. Considering the great
mass of tasks which the so-called “totalitarian” state had heaped upon
itself, cases where two or three departments were competent for the same
matter could not be avoided. Conflicts between departments were
inevitable. If a conspiracy existed, as the Indictment assumes, the
conspirators were remarkably incompetent organizers. Instead of
co-operating and going through thick and thin together, they fought one
another. Instead of a conspiracy we would seem to have had more of a
“dispiracy.” The history of the jealousy and mistrust among the powerful
figures under Hitler has still to be written. Now let us remember that
in the relations between all departments and within each department,
people surrounded themselves with ever-increasing secrecy; between
departments and within each department, between ranks and within the
various ranks, more and more matters were classed as “secret.” Never
before has there been so much “public life,” that is, nonprivate life in
Germany as under Hitler; and also never before was public life so
screened off from the people, particularly from the individual members
of the hierarchy themselves, as under Hitler.

The single supreme will became, quite simply, technically indispensable.
It became the mechanical connecting link for the whole. A functionary
who met with objections or even resistance to one of his orders on the
part of other functionaries only needed to refer to an order by the
Führer to get his way. For this reason many, very many, among those
Germans who felt Hitler’s regime to be intolerable, who indeed hated him
like the devil, looked ahead only with the greatest anxiety to the time
when this man would disappear from the scene. For what would happen when
this connecting link disappeared? It was a vicious circle.

I again stress the fact that an order by the Führer was binding—and
indeed legally binding—on the person to whom it was given, even if the
directive was contrary to international law or to other traditional
values.

But was there really no limit? During the first period, at any rate,
that is, just at the time when the foundations of power were being laid,
at the time when the monocratic constitution was being developed step by
step, Hitler’s followers among the people saw in their Führer a man
close to the people, an unselfish, almost superhumanly intuitive and
clear-thinking pilot and believed only the best of him; they had only
one worry: Was he also choosing the right men for his assistants, and
was he always aware of what they were doing? The tremendous power, the
unlimited authority were vested in this Hitler. As in every state, this
might include harsh orders. But it was never intended as giving full
power to be inhuman. Here lies the boundary line; but this line has at
no time and nowhere been quite clearly drawn. Today the German people
are utterly torn in their opinions, feelings, and intentions; but they
are probably in agreement on one thing, with very few exceptions: As
accusers, they would not wish to draw this line with less severity than
other people do toward their leaders. Beyond that line, Hitler’s order
constituted no legal justification.

It must not be forgotten, however, that this line is not only vague by
nature but also follows a different course in peace than in wartime,
when so many values are changed and when men of all nations, especially
in our days, take pride in deeds which would horrify them at any other
time. And the decision to wage war does not in itself overstep that
line, in spite of its tremendous consequences—not with any nation in
the world.

Hitler himself, at any rate, did not recognize this boundary line of
inhumanity, of nonhumanity, as a limit to obedience in his relations
with his subordinates; and here again opposition would have been
considered a crime worthy of death in the eyes and judgment of this man,
invested as he was with limitless power and controlling an irresistible
machine. What should a man who received an order exceeding the line have
done? What a terrible situation! The reply given in Greek tragedy, the
reply by Antigone in such a conflict cannot be imposed. It would show
scant knowledge of the world to expect it, let alone demand it, as a
mass phenomenon.

Before we come to the specific question of who in the Reich possessed
the power of deciding on war and peace, one more word remains to be said
about the forms which Hitler’s orders assumed.

Hitler’s orders are solely the decisions of this one man, whether they
were given orally or in writing and, in the latter case, whether they
were clothed in more or less ceremony. There are some orders by Hitler
which can be recognized as such immediately. They are called “Erlass”
(decree), such as the decree concerning the institution of the
Protectorate of Bohemia and Moravia of 16 March 1939; or “Verordnung”
(order), like the order for the execution of the Four Year Plan of 19
October 1936; or “Weisung” (directive), like the strategic decisions so
often cited during this Trial; or simply “Beschluss” (decision) or
“Anordnung” (instructions). Often they are signed in Hitler’s name only;
sometimes we find the signatures of one or more of the highest civil or
military functionaries as well. But it would be fundamentally wrong to
assume that this was a case of countersignature as understood in the
modern democratic constitutional law of nations ruled constitutionally
or by a parliament—of a countersignature which makes the signatory
responsible to a parliament or to a state court of law. Hitler’s orders
were his own orders and only his own orders. He was much too fanatical a
champion of the one-man doctrine, that is, of the principle that every
decision must be made by one and only one man even to consider anything
else, especially in the case of his own decisions. We will leave his
high opinion of himself entirely aside in this connection. Whatever the
more or less decorative significance of such countersigning may have
been, there was never any doubt that the Führer’s orders represented
nothing but his own decision.

Special attention must be drawn to those laws which appeared as Reich
Cabinet Laws or Reichstag Laws. Hitler’s signing of a law of the Reich
Cabinet represented the formal certification of a Cabinet decision. In
actual fact, however, a stage was reached where the Reich Cabinet Laws
were also merely decisions by Hitler, who had previously given some of
his ministers the opportunity to state the opinion of their departments.
And when Hitler signed a law which, according to its preamble, had been
decreed by the Reichstag, this was again only a case of a formal
certification. In reality, however, it was a decision by Hitler. From
November 1933 onward, at the latest, the German Reichstag was no longer
a parliament but merely an assembly for the acclamation of Hitler’s
declarations or decisions. These scenes of legislation appeared to many
people at home and abroad to amount almost to an attempt to make
democratic forms of legislation ridiculous by caricaturing them; nobody,
either at home or abroad, regarded them as proceedings during which an
assembly of several hundred men arrived at a decision after
consideration, speeches, and counterspeeches.

There exist, however, also orders by Hitler which are not signed by him
but which can immediately be recognized as his orders. They are drawn up
by a Reich Minister or some other high functionary, who states in the
introduction “The Führer has ordered” or “the Führer has decreed.” This
is not an order by the signatory, but a report by the signatory on an
order given orally by Hitler. The orders by Hitler as Supreme Commander
of the Armed Forces were thus often clothed in the form of such a
report.

Finally there are orders by Hitler which can only be recognized as such
by a member of the public if he possesses knowledge of the
constitutional position. When the High Command of the Armed Forces (OKW)
issues an order, it is always an order by Hitler; Hitler himself,
together with his working staff, was the OKW. The power to issue OKW
orders rested solely with Hitler.

By my explanations regarding the constitution of the Hitler Reich, I
have already—as it were by implication—dealt with the question as to
who was responsible for the ultimate decisions, for this state’s
decisions regarding fundamental questions of existence, especially for
the decision about war and peace. Kelsen said—in his great treatise of
the year 1943,[57] which I have already mentioned above—“probably the
Führer alone.” We shall have to say: quite definitely alone.

Under the Weimar Constitution the sole body responsible was the Reich
legislature, for Article 45 demands a Reich Law for a declaration of war
and for the conclusion of peace. And a Reich Law could be passed only by
the Reichstag or by a vote of the German people. Neither the Reich
President, that is, the head of the State, nor the Reich Cabinet had the
power. They might, at most, have created such circumstances by acts
lying within their jurisdiction—possibly the Reich President as
Commander-in-Chief of the Armed Forces—so as to give the Reich
legislature no option in its decision; a problem which, as far as I
know, became a tangible one in the United States with regard to the
relationship of the President to Congress and was therefore seriously
discussed, while it was never a tangible one for the Germany of the
Weimar Constitution. If, however, the Reich legislature had by means of
a law taken the decision to wage war, the Reich President and the whole
State hierarchy, particularly the Armed Forces, would have been bound by
this decision with no right of examination, let alone of objection, even
if all the experts on international law in the world had regarded the
law as contrary to international law. The Weimar democracy could not
have tolerated, any more than any other nation, a state of affairs in
which military leaders as such could examine the decision to wage war
taken by the political leaders, in the sense that they could refuse
obedience if they saw fit. The military means of power must remain at
the disposal of the political leaders of a state. Otherwise they are not
means of power at all. That has always been so. And it will have to be
so all the more if the duty to give assistance against aggression is
really to apply among the nations.

I have already shown how, in the course of a gradual transformation
which laid particular emphasis on legal forms, Hitler replaced all the
highest authorities of the Weimar period and combined all the highest
competencies in his own person. His orders were law.

The circumstances in a state can be such that the man who is legally the
only one competent for the decision on war and peace, may have, in
practice, no—or not the sole—authority. If, however, both the sole
legal competence and the sole authority in actual practice have ever
been coincidental in any state, then such was the case in Hitler
Germany. And if, in any question, Hitler did ever go as far as to accept
the advice of a third party, then that was certainly not the case in the
question of war or peace. He was the arbiter of war and peace between
the Reich and other nations—he alone.

I conclude: Sentences against individuals for breach of the peace
between states would be something completely new under the aspect of
law, something revolutionarily new. It makes no difference whether we
view the matter from the point of view of the British or the French
chief prosecutors.

Sentences against individuals for breach of the peace between states
presuppose other laws than those in force when the actions laid before
this Tribunal took place.

The legal question of guilt—and I am here only concerned with that—is
thus posed in its full complexity, for not one of the defendants could
have held even one of the two views of the legal world constitution, on
which the chief prosecutors base their arguments.

THE PRESIDENT: Dr. Sauter, could we take up the time between now and 1
o’clock in dealing with that letter, if you have it now? And possibly
Dr. Exner also has his letter.

DR. SAUTER: The Defendant Walter Funk was questioned here as a witness
under oath. After his examination, he told me that on one point his
testimony was not quite correct; and he asked me to correct his
testimony on this point, since he himself had no opportunity to do so.
On 17 June 1946 I wrote the following letter to the President of the
International Military Tribunal, which is signed by defendant’s counsel
Dr. Sauter as well as by the Defendant Walter Funk personally. I shall
read the text of the letter:

    “Re: Penal case against Walter Funk; correction of the
    testimony.

    “The Defendant Walter Funk in his cross-examination on 7 May
    said that he”—that is, Funk—“heard only through Vice President
    Puhl of a deposit of the SS at the Reichsbank. The witness, Emil
    Puhl, when he was examined, testified that it was Funk who had
    spoken with the Reichsführer SS Himmler and he”—that is,
    Puhl—“was then informed by Funk about the deposit to be set up.
    From the statements of the witness Emil Puhl the Defendant Funk
    reached the conclusion that, in fact, on this point, the
    statement of the witness Emil Puhl is correct; and after some
    consideration, the Defendant Funk believed that he could recall
    that it was he, Funk, to whom Reichsführer SS Himmler first
    applied concerning the establishment of a deposit for the SS and
    that he then informed Vice President Puhl about this matter.

    “The statement by the Defendant Funk under cross-examination was
    due to faulty recollection, because of the fact that these
    cross-examination questions of the Prosecution had completely
    surprised and greatly disturbed Funk. Immediately after the
    examination of the witness Puhl, Funk informed me of his mistake
    and asked me to correct his factually incorrect statement on
    this point, since he himself would have no opportunity to do so.

    “I put forward this request of the Defendant Funk, and I take
    the liberty of informing the President of the correct state of
    affairs. The Defendant Funk agrees with this correction by
    cosigning this letter.”

Then there are the two signatures, “Walter Funk” and “Dr. Sauter.” That
is the content of the letter, which I sent on 17 June 1946, to the
President to correct the testimony of Funk.

THE PRESIDENT: Thank you, Dr. Sauter.

Dr. Exner, have you got your letter so that you can read it?

PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): Mr. President, I
was downstairs in the General Secretary’s office, and I was promised it
at 1:30, but I have not yet received it. I am sorry; at the moment I am
not in a position to fulfill your request.

THE PRESIDENT: You probably will have it at 2 o’clock.

              [_The Tribunal recessed until 1400 hours._]

                                 NOTES

-----

[1] Note of Secretary of State Kellogg to the French Ambassador of 27
February 1928.

[2] Note of the United states Government to the Governments of Great
Britain, Germany, Italy, and Japan of 13 April 1928.

[3] “Considérée jadis comme le droit divin et demeurée dans l’éthique
internationale comme une prérogative de la souveraineté, une pareille
guerre est enfin destituée juridiquement de ce qui constituait son plus
grave danger: sa légitimité. Frappée désormais d’illégalité, elle est
soumise au régime conventionnel d’une véritable mise hors la loi....”
The speech by the French Foreign Minister is reproduced in The
Department of State; _Treaty for the Renunciation of War_. United States
Government Printing Office; Page 309.

[4] _Commentaire du Pacte de la Société des Nations selon la politique
et la jurisprudence des organes de la Société_. Paris 1930. (See
especially Page 73 et sequentes) Further in the supplements for 1931-35;
1er Supplément au Commentaire du Pacte (1931) Page 13 et sequentes; 2ème
Supplément (1932) Page 17 et sequentes; 3ème Supplément (1933) Pages 18,
39; 4ème Supplément (1935) Pages 19, 99.

[5] Congressional Record, _Proceedings and Debates of the Second Session
of the 70th Congress of the U. S._, Volume LXX, Part. 2, Page 1333.

[6] See Baker, Ray Stannard, _Woodrow Wilson and World Settlement_, New
York 1922, passim.

[7] See Kuhn, Arthur K., _Observations of Foreign Governments upon
Secretary Hull’s Principles of Enduring Peace_ (A. J., Volume 32, 1938,
Pages 101—106). Also: Wilson, Woodrow, _War and Peace_. Presidential
Messages, Addresses and Public Papers, 1917-24 (edited by Ray Stannard
Baker and William E. Dodd), New York 1927.

[8] Commentaire, Page 74.

[9] On the indisputable fact of the collapse, and the guilt of the great
powers therein, cf. the bitter statements of Fenwick from the period
immediately preceding the second World War. (_International Law and
Lawless Nations_; A. J., Volume 33, 1939; Pages 734-745.)

[10] _Neutrality and Unneutrality_ (A. J., Volume 32, 1938, Page 778 et
sequentes.)

[11] See also the Memorandum on the Signature by His Majesty’s
Government in the United Kingdom of the Optional Clause of the Statute
of the Permanent Court of International Justice (Cmd. 3452,
Miscellaneous Number 12, 1929).

[12] It is the same train of thought developed by Brierly, _Some
Implications of the Pact of Paris_ (Br. YB 1929).

[13] “Tout le mécanisme prévu pour le maintien de la paix s’est
dialogue.”

[14] _Parliament Debate_, H. C., Volume 332, Column 226 et sequentes.

[15] _Parliament Debate_, H. C., Volume 353, Number 198, Column 1178 (21
November 1939).

[15a] See Jahrreiss Plea, Annex, Exhibit Numbers 35 and 36.

[16] Resolutions of the Assembly and the Council of 14 December 1939.

[17] _Congressional Record, Proceedings and Debates of the Second
Session of the 70th Congress of the U. S._, Volume LXX, Part 2, Pages
1169/99. See also Ellery C. Shotwell, _Responsibility of the United
States in Regard to International Cooperation for the Prevention of
Aggression_ (A. J., Volume 26, 1932, Page 113).

[18] See also Brierly, J. L., _Some Implications of the Pact of Paris_
(Br. YB 1929). He thinks that a violation of neutrality is impossible.
In 1936 the same thought was expressed by the Englishman McNair:
_Collective Security_ (Br. YB).

[19] See, for instance, Eagleton, Clyde, _An Attempt to Define
Aggression_ (International Conciliation Number 264, 1930). Cuten, A.,
_La notion de guerre permise_, Paris 1931. Wright, Quincy, _The Concept
of Aggression in International Law_ (A. J., Volume 29, 1935, Page 395 et
sequentes).

[20] Note of the United States Government to the Governments of Great
Britain, Germany, Italy, and Japan of 13 April 1928; draft treaty of the
20 April 1928 drawn up by the French Government; Note of the British
Secretary of State for Foreign Affairs of 19 May 1928 to the American
Ambassador; Note of 23 June 1928 from the U. S. Government to all nine
participants in the negotiations; Note of the British Secretary of State
for Foreign Affairs of 18 July 1928; Note of the Soviet Commissar for
Foreign Affairs to the French Ambassador of 31 August 1928.

[21] Note of the Soviet Commissar for Foreign Affairs of 31 August 1928.

[22] Note of the Soviet Commissar for Foreign Affairs of 31 August 1928.

[23] See also Kellogg, F., _The War Prevention Policy of the United
States_ (A. J., Volume 22, 1928, Page 261 et sequentes).

[24] _Congressional Record, Proceedings and Debates of the Second
Session of the 70th Congress of the United States_, Volume LXX, Part 2
(5 January 1929 to 26 January 1929, Page 1169 et sequentes, Washington
1929).

[25] _International Lawlessness_, (A. J., Volume 32, 1938, Page 775).

[26] _Collective Security_ (Br. YB, 1936, Page 150 et sequentes).

[27] _Neutrality and Unneutrality_ (A. J., Volume 32, 1938, Page 778 et
sequentes).

[28] _International Law and Lawless Nations_ (A. J., Volume 33, 1939,
Pages 743-745).

[29] See also Seelle, George, _Théorie juridique de la révision des
traités_. Paris, 1936; further: Kunz, Josef, _The Problem of Revision in
International Law_ (“peaceful change”), (A. J., Volume 33, 1939, Pages
33-35).

[30] _International Lawlessness_ (A. J., Volume 32, 1938, Page 775).

[31] Brierly, _Some Implications of the Pact of Paris_ (Br. YB 1929,
Page 208 et sequentes).

[32] The well-known “Budapest Articles,” International Law Association:
_Briand-Kellogg Pact of Paris_, London 1934, Page 63 et sequentes.

[33] Commentaire, Page 371.

[34] Of 8 March 1930. See also Rutgers in the _Recueil des Cours_
(Académie de Droit International), Volume 38, Page 47 et sequentes.
Further: “Budapest Article 7” and Kunz, Josef, “Plus de loi de la
guerre?” (_Revue Génerale de Droit International Public_, 1934).—Cohn,
_Neo-Neutrality_ (1939).

[35] The Peruvian delegate, Senor Cornejo, in the Committee of the
League of Nations Assembly in 1929 said (Assemblée 1929, C III J. O.,
Page 201): “Neutrality no longer exists!” Stimson, The Pact of Paris,
Address 8 August 1932. Hull, Declaration on the Neutrality Law of 17
January 1936. Pact of Rio de Janeiro of 10 October 1933. Speech by the
Swedish Foreign Minister Sandler of 6 December 1937 (see Jahrreiss Plea,
Annex Exhibit Number 27). 3 October 1939: Declaration of Panama; the
exchange of notes by the 21 American Republics with Great Britain,
France, and Germany (23 December 1939, 14 January, 23 January, 14
February 1940) is based completely on the classic Neutrality Law. The
“Budapest Articles.”—_Literature_: D’Astroy, B. (1938); Baty, Th.
(1939); Bonn, M. J. (1936/37); Borchard, E. M. (1936, 1937, 1938, 1941);
Brierly, J. L. (1929, 1932); Brown, Ph. M. (1936, 1939); Buell (1936);
Cohn (1939); Descamps, de (1930); Eagleton, Clyde (1937); Fenwick,
Charles G. (1934, 1935, 1939); Fischer Williams, Sir John (1935, 1936);
Garner, James Wilford (1936, 1938); Hambro, Edvard (1938); Hyde, C. C.
(1937, 1941); Jessup, P. C. (1932, 1935, 1936); Lauterpacht (1935,
1940); Mandelstam (1934); Miller, David Hunter (1928); McNair (1936);
Politis, N. (1929, 1935); Rappard, W. E. (1935-1937); Schindler, D.
(1938); Stimson, H. (1932); Stowell, Ellery C. (1932); Tenekides, C. C.
(1939); Whitton, J. B. (1927, 1932); Wright, Quincy (1940).

[36] Réserves de la Délégation Suisse (M. Motta) of 10 October 1935.

[37] Udenrigspolitiske Meddelelser 4. Aergang, Numbers 4-5, Page 122 et
sequentes (see Jahrreiss Plea, Annex Exhibit Number 30).

[38] Actes de la IIe Assemblée, séance des commissions, I, Page 396 et
sequentes.

[39] Actes de la IXe Assemblée, Page 75.

[40] Department of State, Press Releases, 9 January 1932, Page 41.

[41] Actes de l’Assemblée extraordinaire (J. O., Supplément special,
Number 101, Page 87).

[42] Jean Ray, 4e Supplément du Commentaire, 1935, Page 10: “Un homme
d’État a dit un jour en parlant de l’article 16 que, s’il s’appliquait,
il ne s’appliquerait sans doute, qu’une fois. On peut dire la même chose
de tout le mécanisme qui doit faire obstacle à la guerre.”—See also
Fischer Williams, Sir John, _Sanctions under the Covenant_ (Br. YB 1936)
and McNair, Arnold D., _Collective Security_.

[43] With reference to the Stimson Doctrine and the case of Abyssinia
see also the works and papers of Borchard (1933), Fischer Williams
(1936), McNair (1933), Sharp (1934), Stimson (1932), Wild (1932), Wright
(1932, 1933).

[44] With reference to the system of collective security see from the
literature concerning the whole position in international law: Brierly
(1932); Bourquin (1934); Brouckere (1934); Cuten (1931); Descamps
(1930); Eagleton (1930, 1937, 1938); Elbe (1939); Fenwick (1932, 1934,
1935, 1939); Fischer Williams (1932, 1933, 1935, 1936); Giraud (1934);
Garner (1936); Graham (1929, 1934); Hill (1932); Hyde (1941); Jessup
(1935); Mandelstam (1934); Politis (1929); Ritgers (1931); Shotwell
(1928); Wickersham (1928/29); Whitton (1932); Wright (1942).

[45] Parliament Debates H.L. 5th series, Volume 95, Cols. 1007, 1043.

[46] Lauterpacht, _The Pact of Paris and the Budapest Articles of
Interpretation_ (Transactions of the Grotius Society, XX, 1935, Page
178), draws his conclusions from the fact that the states can accept or
refuse, as logically established as law in Budapest. Jessup
(_Neutrality, Its History, Economics, and Law_, Volume IV, _Today and
Tomorrow_, 1936) finds that the states failed to accept the Budapest
Articles.

[47] See A. J., Volume 31, 1937, Pages 680-693.

[48] See the concurring statements by Kuhn, Arthur K., _Observations of
Foreign Governments upon Secretary Hull’s Principles of Enduring Peace_
(A. J., Volume 32, 1938, Pages 101, 106).

[49] See Wright in A. J., Volume 34, 1940, Page 680 et sequentes;
particularly Stimson’s speech of 6 January 1941 should be mentioned
here.

[50] Fischer Williams also stresses this, (_Sanctions under the
Covenant_, Br. YB, 1936, Page 130 et sequentes). Also Kelsen,
_Collective and Individual Responsibility_... 1943, Page 531.

[51] An all too appropriate warning against mistaken conceptions in
connection with the term “crime international” is given by Fischer
Williams; _Sanctions under the Covenant_, (Br. YB, 1936, Page 130 et
sequentes).

[52] _Actes de l’Assemblée_ 1927, P., Page 153. Also Jean Ray,
Commentaire, Pages 74/75.

[53] Correctly Fischer Williams, _Sanctions under the Covenant_ (Br. YB,
1936).

[54] _Collective and Individual Responsibility_..., Pages 534, 530, 539,
540, 542.

[55] Scott, James Brown, stresses the great merit gained by the American
delegates at that time in the interests of law and justice (see
House-Seymour, _What Really Happened at Paris_; New York
1921).—Williams, E.T., _The Conflict between Autocracy and Democracy_
(A. J., Volume 32, 1938, Page 663 et sequentes).—Kelsen, _Collective
and Individual Responsibility_..., Page 541.—Also Borchard, Edwin,
_Neutrality and Unneutrality_ (A. J., Volume 32, 1938, Page 778 et
sequentes).

[56] Kelsen seems to think that no such state exists. (_Collective and
Individual Responsibility_..., Page 543).

[56a] Compare Jahrreiss Plea. Annex Exhibit Number 42.

[57] Kelsen, _Collective and Individual Responsibility_, Page 546.




    Editor’s Note: _In respect to the presentation of the final
    pleas by Counsel for the Defense, the Tribunal in several
    instances directed that written speeches of excessive length be
    shortened for oral presentation in Court and that notice would
    be taken by the Tribunal of the paragraphs omitted. In the
    sessions to follow such passages have been reproduced in small
    type._


                          _Afternoon Session_

DR. EXNER: Mr. President, I shall read the letter dated 22 June 1946,
sent to the International Military Tribunal:

    “Mr. President:

    “During the cross-examination on 6 June 1946, the British
    Prosecution presented Document C-139 to the Defendant Jodl,
    obviously thinking that the document showed evidence of
    preparatory measures for occupying the Rhineland as early as 2
    May 1935 ...”

[_The proceedings were interrupted by technical difficulties in the
interpreting system._]

THE PRESIDENT: Go on, Dr. Exner.

DR. EXNER:

    “... the Defendant Jodl has stated that he did not know the
    document. After looking through the document, he explained that
    it is quite obvious from the document that in the West, at any
    rate, there was no plan for any German action, but that
    definitely only defensive measures were considered. He did not
    discover where the ‘Operation Training’ was supposed to take
    place; he could only guess.

    “Defendant Freiherr von Neurath has now informed him that in
    1934, during the summer, Mussolini had stationed several
    divisions at the Brenner Pass in order to occupy the North Tyrol
    in the event of the Anschluss. The Defendant Jodl, after
    receiving this information, perused the document again, and he
    now imagines that according to this document an operation was to
    be prepared to thrust the Italians back across the Brenner Pass
    in the event of their marching in. But he knows nothing about
    this affair.

    “The entire matter has nothing at all to do with the Defendant
    Jodl, and for that reason I shall not refer to it during this
    session. He is extremely anxious, however, that it should not
    appear as if he had attempted to conceal anything.” It is signed
    “Dr. Exner,” and “Jodl.”

THE PRESIDENT: Very well.

Now I call on Dr. Stahmer.

DR. STAHMER: Mr. President, to begin with, I should like to remark that
I have still to complete the Case Katyn. The Case Katyn could not be
incorporated into the book which has been submitted to the Tribunal,
because the hearing of the evidence only took place on Monday and the
day before yesterday. I shall have to present it, therefore, without its
being in the book. It is only a brief presentation, and the interpreters
will receive copies of my draft. Unfortunately, however, I cannot submit
a translation to the Tribunal at the moment, as the hearing of the
evidence was concluded only the day before yesterday and I could not
work on it before. I shall add this at a suitable moment, and I hope
that in spite of this I shall be finished within the time I mentioned.

[_The proceedings were interrupted by technical difficulties in the
interpreting system._]

THE PRESIDENT: Is that all right now? Go on, Dr. Stahmer.

DR. STAHMER: When I mentioned the time I should require I could not take
into account the Katyn Case. Nevertheless, I hope that I shall be able
to finish in the time which I have stated, as I am shortening the report
in some places and I believe I shall have sufficient time.

May it please the Tribunal: This Trial, of truly historical and
political importance, and of great significance in shaping new laws, is
of dimensions such as have not been known hitherto in the history of
law; these proceedings which concern not only the defendants present in
the Court, but which are of the greatest importance to the entire German
people, are now entering upon a new phase.

The Defense takes the floor.

The position of the Defense in these proceedings is especially
difficult; for there is an all too unequal distribution of strength
between the Prosecution and the Defense.

Months before the start of the Trial the Prosecution was in a position
to search all offices and archives in Germany and abroad with a large
staff of experienced collaborators, as well as to examine witnesses in
all countries. Thus they were able to submit to the Tribunal an immense
amount of evidence.

The difficult position of the Defense is further aggravated by the fact
that in the Anglo-American procedure on which this Trial is based there
is a clause missing which is contained in the German criminal procedure
according to which the Prosecution is also bound to procure and submit
evidence exonerating the accused...

THE PRESIDENT: Dr. Stahmer, let me tell you that the statement you have
just made is entirely inaccurate. There is no such thing as an English
code of criminal procedure, but it is the universal practice for the
Prosecution to disclose to the Defense any document and any witness who
assists the Defense and therefore your statement is entirely false—and
I believe that same practice obtains in the United States.

And as for what you say here about the Defense being under any unfair
difficulties as compared with the Prosecution, that also is entirely
inaccurate because I feel certain that the Prosecution in this case have
observed the same rules that would have been observed in England and
would have disclosed to the Defense any document or any witness over
whom they had control who would assist the Defense, and there have been
various occasions on which the Prosecution have disclosed in this case
to the Defense documents which have been supplied to them, which
appeared to them to help the Defense.

Every document which has been put in by the Defense in this case—or
practically every document—has been procured for them after great
efforts by the Prosecution, and investigations have been made all over
Germany and, I may say, almost all over the world in order to help the
Defense in this case.

DR. STAHMER: Thank you for your instruction, Mr. President.

After the reading of the Indictment, Reich Marshal Göring, in reply to
the question of the presiding judge as to whether he pleaded guilty or
not guilty, declared, “Not guilty in the sense of the Indictment.” This
statement of the accused necessitates an examination of all the charges
made by the Prosecution.

The accused has, of course, already during his personal examination
dealt with many questions which are of considerable importance for his
defense. He expressed his opinion in detail with regard to political and
military developments and exhaustively described the motives for his
actions, and the origin and course of events.

I am thankful to the High Tribunal for permitting the accused to portray
matters to the total extent to which he saw, felt, and experienced them,
for only such direct personal portrayal can afford good insight into the
attitude of the accused, thus making it possible to obtain a reliable
opinion of his personality. This knowledge is absolutely necessary if
the Tribunal is to come to a decision which is not only in harmony with
objective law, but which also renders the maximum of justice to the
individuality of the perpetrator.

I do not consider it necessary—after the accused was heard so
exhaustively on all particulars—to deal with every question to which he
has already given the requisite explanation. For this reason I can limit
the defense to the following statements:

We are in a transitory period of history of the greatest significance.
An age is coming to an end which has been known less for its concept of
order than for its concept of liberty. This striving for liberty
released tremendous forces—so gigantic that in the end it was
impossible to master them. The tremendous progress this era has
unquestionably made in scientific and technical spheres we have dearly
paid for with the shattering of all human order and the loss of peace in
the entire world.

So far the profound reasons for such a disastrous development have
hardly been discussed in this Court. But in order to understand properly
the grave crimes and aberrations which are indicted here it is
imperative to throw some light on the historical background.

The French chief prosecutor has already pointed out that the roots of
National Socialism are to be found in a period far removed from us. He
goes back to the beginning of the last century. He sees the first step
to a leading astray of the German character in Fichte’s _Reden an die
deutsche Nation_ (Speeches to the German Nation). Fichte preached the
doctrine of Pan-Germanism, he says, insofar as he wanted to see the
world planned and organized by others, just as he himself saw it and
would have liked it to be shaped. I cannot understand how this can be
taken to express more than the universal human desire to take part in
the shaping of a common destiny. Only the methods of such attempts to
participate may, at times, be justly criticized.

A Swiss assertion, which also perceives in Fichte the cause of Germany’s
going astray, seems to me to be clarifying in this respect. It does not,
however, accuse him of Pan-Germanism, that is, of the will to subjugate
foreign peoples, but rather reproaches him for having attempted at all
to unite the Germans into one nation. It contends that this was an
inadmissible attempt to imitate the French and British, whereas it would
have been more suited to the German character to remain a nation made up
of different peoples. For only as such could it have continued its
historical mission of remaining the nucleus of a European federation.
Judging by Fichte alone the development is therefore not so easily
interpreted.

If one wishes to think historically, one cannot simply fall back on
Fichte. For his _Reden an die deutsche Nation_ was only an answer to the
“Call to Everyone” which the French Revolution had sent out into the
world, and they were directly provoked by the appearance of Napoleon I.
One must go back over the chain of causes and effects to their very
beginning. This, the beginning of a national and personal striving for
liberty which has characterized the whole of modern times, we find in
the Middle Ages.

The colorful play of national and imperial tendencies and struggles
which had been the hallmark of ancient times was overcome by the
conception of one eternal and omnipotent Christian Church. With this a
static order superseded the dynamic forces of the time, an order which
according to the doctrine of the Church was created by the Lord himself
and was therefore by “the grace of God.” It strove to embrace all
humans, and to lead them to peace and rest. It was the teachers of the
Church in the Middle Ages who first ventured to subject war to the
principles of law. Prior to that it was accepted as a natural
phenomenon, like sickness or bad weather, and was often looked upon as a
judgment of God. Men like St. Augustine and Thomas Aquinas opposed this
conception and declared that one must differentiate between a just and
an unjust war. They did this upon the basis and within the framework of
a Christian belief, by which God had entrusted mankind with the
fulfillment of a moral world order to bind one and all; an order which
would provide the answer to the question of the righteousness or
unrighteousness of a war.

When by the advent of the Renaissance and the Reformation the spiritual
basis of the medieval order was shaken, this development into a
universal world peace was reversed. Life, formerly tending toward
stagnation and tranquility, now turned into a torrent which, as it swept
ever faster through the centuries, gradually swelled to the present
catastrophe. The individual, thirsting for freedom, cast off the
shackles of Church and class distinction. The State, declaring itself
sovereign, violated the universal order of God as represented by the
Church. Not recognizing any superior power, it began to conquer as much
living space as it could on this earth, unless the stronger will of
another nation did not impose any natural barriers. Peace hence existed
only in the naturally rather unstable equilibrium of powers obeying only
their own laws.

Thus there came into existence world empires such as the British Empire,
Russia, the United States, and the enormous French colonial empire,
which as living space today comprise more than one half of the surface
of the entire world.

The theory of war as a crime, created by Grotius, the teacher of
international law quoted by the Prosecution, failed because it was
incompatible with the dynamic power of this time. It represents, as we
know, only an attempt to keep alive through secular arguments the
afore-mentioned Christian concept of warfare. One cannot, however,
derive justice from simple nature, for it knows no other measure than
brute force, and always decides in favor of the stronger. Only
metaphysically can justice be defined as an independent force set above
natural impulses. Therefore the theory of Grotius necessarily petered
out in the eighteenth century since, thinking in a purely worldly sense,
it could not find a criterion for a just war.

This development from the old order to new liberty, in other words, the
fight of all against all, found its climax and culminating point in the
great French Revolution. By attempting to set human intellect upon the
throne of God, they reached the apex of secularization. Human intellect,
however, proved unable to balance the conflicting ideals of liberty,
equality, and brotherliness, that is, to practice true justice.

From that time on the search for true justice stirs the world. All
socialist theories are merely attempts at solving this problem. After
having been disappointed by the disadvantages of too much liberty,
mankind once again seeks security and order. Some wish to return to the
Christian truth of God, while others want to proceed in order yet to
solve the problem through human intellect.

The National Socialists, whose most revolutionary leaders wanted to go
further backward, and at the same time forward to deification of life
itself in a biological-political sense, have been conquered and
eliminated. Yet no solution of the problems of world order has hitherto
been found. The victorious powers hope to arrive at it, however, in
drawing a line between themselves and the vanquished by jointly
indicting and punishing them as criminals.

From whence, however, will they take the standard by which to define
justice and injustice in a legal sense? Insofar as such standards exist
by international law as applied up to now, no further statements are
required. That a special Court for the Trial was created by the Charter
of this Tribunal I will not object to. I must, however, protest against
its use, insofar as it is meant to create new material law by
threatening punishment for crimes which, at the time of their
perpetration, at least as far as individuals are concerned, did not
carry any punishment.

One cannot, by an arbitrary act, suddenly create new law when, after
centuries of revolutionary development, the old universal principles of
medieval law have been gradually abolished and the autonomous thinking
of the individual in the moral field has opened gate and door to
anarchy. As we know, the very cause of the general state of anarchy in
the sphere of justice, from which originated the crimes that are the
subject of the accusation here, was the fact that people had forgotten
to differentiate between might and justice. The success of so many
revolutions over once legitimate rulers “by the grace of God” has shown
that might apparently goes before right and that the latter can be
changed at will. By what would it then be possible to tell what is right
except through the force with which it is able to assert itself and hold
its own? This relativity of law which had come about, this positivism of
law, no longer concerned itself with a moral justification of law.

Can one expect that punishment will be recognized as just, if the
culprit was unable to foresee any punishment because at the time he was
not threatened thereby, and therefore believed himself able to derive
the authorization for his way of acting solely from the political aims
pursued? Of what help is reference to the ethical laws, if such must
first be found again? According to Justice Jackson’s opinion, however,
the Nazi Government from the start was never the representative of a
legitimate state which had pursued the legitimate aims of a member of
the international community. Only from such an attitude can the
Indictment for conspiracy be understood, which will be discussed later.
In fact this Indictment, as the entire argumentation of Justice Jackson,
is far ahead of its time. For there were no internationally recognized
standards according to which—outside of positive international law—the
legitimacy of states and their aims could have been judged, nor was
there an international community as such. Slogans about the legitimacy
of one’s own and of the illegitimacy of foreign aspirations served only
the formation of political fronts, just as did the efforts to brand
political adversaries as disturbers of the peace. Whatever they did,
they certainly did not create law.

Justice Jackson correctly declared that it would have been possible for
the conquerors to deal with the conquered as they saw fit. But, said he,
nondiscriminatory punishments without a final and fair establishment of
guilt would be a breach of promises repeatedly given and would be a
heavy burden on America’s conscience. For that reason he himself
proposed judicial proceedings which were to differ from ordinary
criminal proceedings by not admitting the usual tactics of obstruction
and delay by the defendants. However, an establishment of guilt was to
be arrived at on the basis of a just and fair trial. If the defendants
were the first leaders of a conquered nation which had to answer before
the law, they were also the first ones to whom the opportunity was to be
given to defend their lives “in the name of justice.”

If this phrase is to have a meaning, then it must also be of
significance for the interpretation of the Charter, because it would not
be reasonable if the Court were obliged to rest exclusively upon the
Charter without taking into consideration the convictions of others with
regard to law. In that case the judgment would represent a mere dictate
of force, against which there would be no defense “in the name of
justice.”

The Charter may therefore be applied by the Court only insofar as its
decrees are justifiable in all conscience, not only formally but also
materially. The Charter itself says that nobody shall be excused for a
violation of its decrees on the grounds of orders from his government or
from a superior. In that case it must apply this, its own logic, also to
itself, by allowing the judge to examine the congruence of its
prescripts with the general principles of legal concept. For a judge,
after all, is far more free and independent of the legislator than a
subordinate of his superior, or a subject of his dictator.

Then there is another question, namely, whether the decrees of the
Charter are really so much in opposition to the previous and ordinary
state of law, especially as to the fundamental ideas of all rules of
law, that the Court cannot acknowledge them as right or apply them. In
practice, the most serious problem consists in deciding which should
have precedence in the case of conflict—the Charter or the legal maxim
_nulla poena sine lege_.

An attempt has been made to justify disregard of this rule in this
specific instance with the highly political character of the Trial. Such
a justification, however, cannot possibly be accepted. The political
significance of a trial is usually apparent from its consequences rather
than during the course of the procedure and through the influence
exercised upon the legal norms to be applied. A judge should administer
law, and not deal in politics. Still less is he called upon to rectify
mistakes made by the politicians. Punishment, the establishment of which
in due time was neglected, may only be meted out by him on the strength
of a subsequent law if he would have done so in any case.

Basically, the principle of the division of power is presumably to be
maintained. By this principle Montesquieu divided the originally united
power of the absolute king into legislative, administrative, and
judiciary. The three different forms of expression of state domination
were to have equal importance, counterbalance each other, and so aid in
controlling one another. This system of the division of power
characterizes the modern constitutional state. Straining the point
somewhat, one might define the field of activities and competency of the
three different forms of expression of sovereign authority by stating
that the legislature has to deal with the future, the administration
with the present, and the judiciary with the past. The legislature sets
the standards to which life is to conform. From time to time these must
be changed in accordance with the changed way of living. But until then
they must remain valid.

Insofar as a mere establishment of norms of life is not sufficient it
will be shaped, as the case arises, by the administration.
Administration itself is bound by certain norms, but on principle is
free to move within the lawful bounds of its good judgment, so as to be
able to respond to the daily changing needs. Just as for the law-making
politician, the idea of serving a purpose is its main consideration.

The judge, on the other hand, may not decide according to the
usefulness, but should decide according to the law. In general, it is
not his task to shape, but to judge. He has to pass judgment on actions
after they have been committed, and examine conditions after they have
arisen in the light of whether and to what extent they corresponded to
the standards, or what juridical consequences they have brought about.
Therefore, as a matter of principle, his view is directed toward the
past. In the life of the state, which is continuously inspired by
politicians looking to the future, he is the restraining counterpole.

Although bound by the laws decreed by the politician, he is not merely
an executive organ. On the contrary, he should control the legislator by
re-examining the laws with regard to their conformity to the
constitution. This, logically, ought to include the examination of
whether the principle of the division of power was maintained, because
just as the judge may judge only _de lege lata_ and must leave the
decisions _de lege ferenda_ to the legislator, the latter in turn is
obliged to refrain from interfering with the former’s competency by
making laws with retroactive power.

The criticism of the administration of justice by the National Socialist
State is mainly based on its having abandoned the division of power. By
putting at the top the political Leadership Principle, the
Führerprinzip, it interfered dictatorially with the competency of the
judges. By means of the Police, that is, the administration, it arrested
and imprisoned people without judicial warrant of arrest, simply for
reasons of political prevention, and even rearrested those who had been
acquitted by the judge and set free. On the other hand, for political
reasons convicted criminals were withdrawn from the hands of justice.
Thereby, quite naturally, the sureness and clarity of the law were
seriously endangered.

But not even this National Socialist State dared renounce outright the
principle _nulla poena sine lege praevia_. In its police measures it
dispensed with their justification by the judge exactly as today the
execution of denazification sentences was justly not placed under the
jurisdiction of the Ministry of Justice by the Regional Council of the
American Zone, on the grounds of being “alien to justice.” By three
laws, however, the National Socialist State decreed an increase in the
scope of punishment previously in force with retroactive validity, but
they did not provide penalties for acts hitherto unpunishable. More
particularly, this was not brought about by the fact that by Article 2a
of the Criminal Code the possibility of criminal analogy was created,
because by this article a threat of punishment only was created,
although not retroactively; and everybody was enabled to conform.

A certain degree of protection against arbitrary judgments and the
splitting-up of law lay in the fact that the National Socialist State
was based on a specific ideology by which the judge was bound.
Concerning the close connection between finding of justice and ideology
the Swiss professor of law, Hans Fehr, of Berne, already in 1927 wrote
in his book, _Recht und Wirklichkeit; Einblick in Werden und Vergehen
der Rechtsformen_: “Without ideology law floats in a vacuum.... Whoever
has no ideology can have no sense of right and wrong...”

Fehr showed that every judge, as far as the law allows him latitude,
judges individually according to his ideology. In an era of liberal
freedom of ideology this naturally brought forth a danger for the
uniformity and sureness of the law. Therefore the liberal state in
particular had to make its criminal court judges conform closely to the
codified substance in each case and forbid them to employ analogies.
Fehr already pointed out the danger inherent in such judgment based on
codified substance, tending to give undue preponderance to the act over
the perpetrator. Following the lines of a dynamic jurisprudence, the
liberal school of legal conception, he therefore advocated an extension
of the judge’s authority to create law.

In that sense, as will be understood from the above, the nonliberal
states directed by a definite ideology had taken the lead. The Soviet
Union, after the Marxists had already long ago rejected the liberal,
allegedly objective, jurisdiction as “bourgeois class justice,” was the
first to introduce a proletarian class justice which deliberately
abandoned the idea of the equality of all before the law. The National
Socialists, according to their racial ideology, followed suit by forming
the thesis, “Right is what serves the people, wrong is what injures it.”
Inside such a solid ideological frame the dangers of criminal analogy,
which were still further narrowed down by Article 2a of the Criminal
Code, dwindled considerably.

In contrast to this, no fixed ideological base as a foundation for the
Charter is discernible. Since its signatories stand on very different
ideological ground we will have to proceed, as in the international law
valid hitherto, from the liberal idea of freedom of ideology. Therefore
the legal thesis _nulla poena sine lege_ should be especially sacred to
it. This is also proven by the fact that the Control Council for
Germany, by abolishing the criminal analogy of Article 2a of the
Criminal Code, brought the above maxim back again to all Germans most
emphatically.

It would be all the more unintelligible and intolerable for the German
sense of justice if this phrase were not to apply to Germans accused of
War Crimes. In itself the Charter is an exceptional law by the mere fact
that it was created only against members of the Axis Powers and based on
an agreement made for one year and subject to notice. If, in addition,
it should abolish the maxim _nulla poena sine lege praevia_,
specifically for actions that were not only within the scope of German
legality, but under most severe penalties had even been made a duty by
the Government of the sovereign German State, then all understanding
would cease for the interpretation that the Court is bound by the
Charter.

Nor is an examination of the political aims connected with the Charter
of any assistance. Justice Jackson has called the Charter and the Trial
a step toward “creating a juridical guarantee that he who starts a war
will pay for it personally.” The American commentator Walter Lippmann
stated elsewhere that the system of collective security for the
prevention of wars had broken down because nobody was prepared to
declare war on the country breaking the peace in order to help prevent a
war which did not directly affect them.

The means for combating the disease of war would have been just as bad
as the disease itself. In consequence of the fiasco of the collective
methods the conception of basing security in the future upon holding
responsible those individual persons accountable for breaking the peace
was evolved by the enemies of Germany in the last war. And this finally
led to the Nuremberg Trial. Taking one’s starting point from this fact,
today one might say: During this second World War revolutionary
developments have taken place; it has driven humanity beyond the bounds
of what was the modern age until a short time ago. The first but
essential steps to create a world state have been made.

The way to peace, as shown here, will be welcomed on principle, although
one will still doubt its absolute reliability. Justice Jackson himself
has expressed doubts whether punishment will serve to intimidate and
thus help prevent breaking the peace in the future. Only somebody
certain of victory will decide to wage a war and thus will not seriously
consider punishment, which would reach him only in the case of defeat.
Therefore the educational issue of this Trial, namely, to strengthen the
sense of justice, seems more important than the effect of intimidation,
which can also be achieved by warning for the future. The politician
will have to learn that the principle of division of power will have to
be observed by him, too, and that he will not find a judge willing
subsequently to condone his mistakes, because he will also punish him on
the basis of subsequent laws. Confidence in international jurisdiction,
which today still suffers from a suspicion of being easily misused for
political purposes, would be heightened considerably through such a
pronouncement. On the other hand, it would most certainly suffer by the
sentencing of acts whose punishable quality remained doubtful. Thus the
violation of the sentence _nulla poena sine lege_ could not be justified
even from the angle of political utility, although conversely one must
realize that the strengthening of the belief in the inflexibility of
justice as the basic pillar of the tremendous dynamics of political
forces serves peace best.

This result cannot be questioned on the basis of the individual
considerations presented by the prosecutors.

The French prosecutors have pointed out that living international law
could not be imagined without international morals, and that a moral
code has precedence over all claims for freedom by the individual as
well as by the nations. These certainly are facts well worth bearing in
mind. Correctly considered, however, they speak only for my viewpoint
that any strengthening of the sense of justice must not start out with a
violation.

When the French chief prosecutor declared that without punishing the
chief culprits of Nazi Germany there could be no future belief in
justice, then obviously he went too far. Justice does not grow out of
obtaining satisfaction for the violated sense of justice at any price.
Otherwise we should quickly arrive again at reprisals, at the endless
chain of vendetta. No; justice demands moderation and consideration of
motives and countermotives. And there the one-sided action taken only
against members of the Axis Powers violates the idea of justice. It is
impossible to justify it by a direct violation of its own principles,
that is, of the commonly prevailing rule: _nulla poena sine lege_. The
British chief prosecutor himself declared the possibility of subsequent
legislature to have been one of the most offensive doctrines of National
Socialist jurisdiction. He does, however, believe that the possibility
of punishing an act already branded as a crime does not represent a
change of the legal situation but only its logical further development,
and is therefore permissible. I do not at all want to contest the
institution of the Tribunal as thereby justified by him. But the
question certainly arises whether this Tribunal is obliged to punish
even though no penal law can be found which threatened the offenses with
punishment at the time of their commission. To affirm this question
would be going much further than the National Socialist judicial
procedure which is so vehemently denounced by the British chief
prosecutor. He did not offer the slightest motivation for such a course,
and appears thus to reject it.

Moreover, he would certainly be ready to admit that the Charter, if it
not merely presumed but possibly wished to establish that the acts
concerned were punishable, ought to have stated this clearly and
unambiguously. The passage involved, in Paragraph 6 of the Charter,
completely lacks such clarity. It reads: “The following acts, or any of
them, are crimes coming within the jurisdiction of the Tribunal.”

This may be interpreted either as a mere regulation of competence or,
albeit with difficulty, as a regulation originally establishing some act
as being punishable. Therefore, this passage must definitely be
interpreted in favor of the defendants according to the established
legal principle _in dubio pro re_. The next phrase, “for which there
shall be individual responsibility,” and the material regulations for
punishment quoted in the following paragraphs, according to their
wording leave no reason for doubt as to their interpretation. However,
they contain only modifications in dealing with acts established as
punishable. The Tribunal may decide whether or not and to what extent
they are compatible with the principle _nulla poena sine lege praevia_.

I find the viewpoint of the American prosecutor most difficult to
understand. On the one hand he denounces all legal arbitrariness on the
part of the Nazis, yet on the other hand he is not prepared to acquiesce
in the punishment of the defendants only for those crimes which were not
merely considered reprehensible at the time they were committed, but
were actually threatened with punishment. On the one hand he does not
desire executions or punishment without first having established guilt
in a fair manner; on the other he demands a strict application of the
Charter even where it contains new laws surprising the defendants. On
the one hand he wants the Trial to appear to future generations as the
fulfillment of the human yearning for justice; on the other, in the face
of objections to the Charter, he invokes the power of the victorious,
who really could have made short work of the defendants.

It seems to me that he speaks too much as an accuser, the sole role he
really wants to assume according to his own words. For the
prosecutor—especially in Anglo-American procedure—the word “justice”
has a different meaning than for the judge, let alone the defendant.
Unquestionably Justice Jackson thinks of himself not only as a
prosecutor but to a large degree also as politician. To him this Trial
is to serve not only as an atonement for wrongs committed, but also, and
above all, in order to develop legal principles which he wishes to
enforce by precedence and from which he expects a consolidation of
international law for the prevention of future wars. Whoever approaches
a cause with so many preconceived opinions and intentions lives in so
completely different a world from that of the defendants, that from them
to him, and vice versa, hardly any ways of understanding will be found.

As far as the political side of this Trial is concerned, I have already
stated why it must not exert any influence on the course of the
proceedings. I merely wish to point out here that a policy applied by
the victors to the vanquished, which perhaps may be characterized as one
of “least resistance,” has once before proved to be a failure—namely,
with regard to the question of disarmament under the Versailles Treaty.

If Justice Jackson really wishes to forego straightforward decision by
force and is prepared to become a party to and submit to a legal
procedure, although not bound to do so, then he will have to forego
presenting arguments which do not belong in a legal procedure. A hybrid,
which is neither a clear act of violence nor a trial in the usual
sense—however much one may try to place it in a halfway position under
the name of a political trial—is an absurdity. It is true that history
knows of other so-called “political” trials of similarly vague
character. I want to point out only the sentencing of Louis XVI by the
French National Assembly. There, however, it was clear from the
composition of the judicial _gremium_ as well as from the procedure
employed, that this was not a matter of finding justice but amounted
simply to a revolutionary act of violence, and courage to proceed with
it was found in mutual exhortation. But here outstanding professional
judges have been entrusted with the proceedings by the victorious
powers. They have been given certain directions by the Charter, but
otherwise their judicial discernment was granted the most far-reaching
authority. There can be no doubt that the politicians called upon the
judges to relieve them of a job which they could not manage themselves.
And now the judges will have to decide by their own competence if and in
how far they are able to execute the mandate. With any remainder the
politicians will have to manage somehow or other on their own.

I was not able to pick a single one from among Justice Jackson’s
arguments which might cause the Tribunal to punish acts which were not
punishable at the time of their perpetration. For this reason I shall
examine the individual points of the Indictment only from the legal
situation prevailing at the time of perpetration.

Of the crimes of which all the defendants are accused the conspiracy is
most extensive as regards time and object. Professor Exner, in his
capacity as a university teacher of criminal law, has given special
attention to this legal conception for our Trial. In order to save time
by avoiding a duplicate report, Professor Exner has placed the result of
his research at my disposal. In conformity with him I have to present
the following regarding this question.

The concept of conspiracy belongs to the sphere of Anglo-American law.
Even there, however, it is in no way uncontested; remarkably enough,
some opinion in England has it that this conception is long since
obsolete: “It has been said that in England this law has become entirely
disused.”

In these proceedings it is a different point that matters. The concept
of conspiracy as used by the Prosecution is entirely unknown to German
law. I would like, therefore, to begin my short legal argument with two
questions which give rise to doubts.

(1) May a criminal procedure, bent on realizing justice, employ legal
concepts which are and always have been utterly alien to the defendants
and to the legal trend of thought of their people?

(2) How would this be consistent with the rule _nullum crimen sine lege
praevia_, a principle which the British chief prosecutor has
acknowledged as a fundamental principle of civilized criminal law?

Can it be honestly stated that already before 1939 not only the
initiation of an illegal war was held to be an act punishable
individually, but also the conspiracy to initiate such a war? The
affirmative answer to this question given by the Prosecution has
surprised not only Germany. May I clear up, in this connection, a
misunderstanding. It has been said that the National Socialist State
itself had issued criminal laws ignoring the rule of _nullum crimen sine
lege_, so that the defendants had no right to invoke this rule. It is by
no means my purpose to defend National Socialist criminal law, but
honesty compels me to say that this is an error. The Third Reich has—as
mentioned before—issued three laws increasing the penalty for an action
with retroactive effect by applying the death penalty to acts which
carried, when committed, prison sentences only. But in no case so far
was a lawful act declared punishable, nor an act which was not a crime
when committed retroactively converted into a crime. And that is the
case here.

However, the Charter, which I follow now, has enjoined the use of the
concept of conspiracy. I do not, therefore, go any further into these
questions of doubt. At any rate, it would appear therefrom that if such
a concept is to be applied to Germans, this must only be done with all
limitations imposed by equity.

Anglo-American law defines conspiracy as an agreement between a number
of persons to commit crimes, “a combination or an agreement between two
or more persons for accomplishing an unlawful end or a lawful end by
unlawful means.”

Similar definitions keep recurring. Two points form the main
characteristics: “agreement” and “common plan.”

Agreement means an explicit or tacit understanding. If several persons
pursue the same end independently of one another, then there is no
conspiracy. It is accordingly not enough that the plan be common to all
of them, they must have knowledge of this community and everyone must
voluntarily accept the plan as his own. The very expression “to
conspire” implies that everyone contributes knowingly and willingly. A
person under duress is no conspirator, for duress does not produce
agreement, at the utmost purely external assistance. For instance, if
somebody imposes his will on another, then there is no conspiracy.
Therefore, a conspiracy with a dictator at its head is a contradiction
in itself. A dictator does not enter into a conspiracy with his
followers; he does not make any agreement with them, he dictates.

Knowledge and will of the conspirators are aimed at a common plan. The
contents of such a plan can be very different. In English law, for
instance, conspiracies are known for committing murder, fraud,
blackmail, false accusation, certain economic delicts, and so forth. In
all these cases, conspiracy is treated as a crime _sui generis_; and
therefore the conspirators are punishable for conspiracy regardless of
whether a murder, a fraud, or even a mere attempt at such crimes has
been committed in any given case.

According to German terminology, we would say that conspiracy is one of
the cases where even preparation of a crime is punishable. Such cases
are known to German criminal law. The partner in an agreement for
committing a crime against life is punishable. According to Article 49b
he is punishable for a crime of preparing a killing even if the intended
action failed to take place.

In a certain sense Article 129 can also be applied here. Participation
in an association pursuing certain aims hostile to the state is
punishable, again independently of whether a crime has actually been
committed. But if it becomes a fact, everybody is charged with his own
culpability in this action. If it happens that the individual
conspirator is guilty neither as the perpetrator, nor as an instigator,
nor as an accessory to the actual crime, then he can be charged only
with participation in an association hostile to the state, but not with
such a crime.

The prosecutors in this Trial go further. They want to punish, under
certain circumstances, the conspirators for individual actions they did
not participate in. To take the most significant example: They want to
charge a conspirator even with those crimes which were committed prior
to his entering the conspiracy.

With the scant material at my disposal, I was not able to find any
evidence that this has any foundation in English or American law. One
thing is certain, however, that such a conclusion is utterly contrary to
the German criminal law, for the latter is based on the self-evident and
unanimously accepted principle that a person is responsible for an
action only when he was the author, or at least the coauthor of it.

Let us now look at the Charter. The Charter quotes two cases which are
declared as punishable and which fall within the competence of the
Court:

(1) Article 6(a) states: Participation in a Common Plan or Conspiracy
for the perpetration of a Crime against Peace. As such are listed the
planning, preparation, launching, and conducting of a war of aggression
or of a war involving the violation of international treaties or
assurances. It is remarkable that a concept which belongs to the
internal criminal and civil law of England and America is applied here,
without more ado, to international facts. The Charter does this by
treating individuals who plan or conduct illegal wars as gangsters
participating in a highway robbery. This is a piece of legal audacity,
because in this case the sovereign state stands between the individuals
and the result of their actions, and this removes all foundation from
the comparison with facts in national daily life. Up to now the concept
of conspiracy has been unknown to international law.

(2) According to the last paragraph of Article 6 of the Charter, the
partners in a conspiracy or in a common plan to commit crimes against
peace, the law of war, or humanity are responsible for all actions
committed by any partner while executing such a plan. This is
fundamentally quite another thing from the case mentioned in (1). It
does not mean punishment of the crime of conspiracy, but responsibility
for the individual act of another conspiracy. In other words,
conspiracy, as taken here, is not a crime _sui generis_, but a form of
complicity in the actions of the conspirators. Mr. Justice Jackson has
given us an example: If three robbers conspire and one of them kills the
victim, then all of them, through their complicity, are responsible for
the killing.

The case mentioned under (2) is of the greatest importance in this
Trial. The individual conspirator is to be punished for crimes committed
not by himself, but by another conspirator. One defendant, who had
nothing to do with the annihilation of the Jews, is to be punished for
this Crime against Humanity only because he was a partner in a
conspiracy.

The question at issue is: In this Trial, are principles of liability to
be applied which go beyond our German criminal law?

Article 6 of the Charter says that all conspirators are responsible for
any action committed by any one of the conspirators “in execution of
such plan.” These are the decisive words for the interpretation.

In my opinion the meaning of these words is as follows: The other
conspirators are also responsible for any actions of their comrades
forming part of the common plan which they helped to conceive, desired,
or at least condoned. A few examples:

Case (a): A, B, C, and D commit a concerted housebreaking in a villa.
They happen to find a girl in the house, and A rapes her. B, C, and D
cannot be charged with this rape. The reason is that A was not, when
committing the crime, acting “in execution of the plan” but at best “on
occasion of the execution of the plan.” The point at issue is not the
execution, but merely the occasion arising while executing the plan.
This view, which will hardly be disputed, is of importance in that it
shows that there cannot be any question of responsibility for all the
actions of the partners to the conspiracy.

Case (b): While exploring the villa, B and C begin to fight about some
loot and B knocks down C. This action, too, was not committed “in
execution of the plan,” but was foreign to the plan. A and D are not
responsible for this “excess.”

The third case: While exploring the villa the burglars are detected by
the owner. D shoots him. Now the issue depends on the special
circumstances of the case. Let us, for instance, go back to the example,
quoted by Mr. Justice Jackson, of the three robbers, one of whom kills
the victim. Considering the nature of American gangsterism, it would
appear quite normal that the individual gangsters concerned bore in mind
the possibility of such an occurrence, and were quite prepared to accept
it. If this is the case they are responsible for the killing, as
accessories or assistants, according to our opinion as well. In such a
case there would be no objection to Mr. Justice Jackson’s solution. But
if the case is different, if the fatal issue had not been foreseen by
the others, perhaps could not be foreseen—for instance, if they assumed
that the inhabitants of the house were away from home—then there exists
no liability on the part of the coconspirators. They are responsible
only for acts incidental to the “execution of the plan.” The common
plan, however, includes only what was foreseen and approved from the
beginning. Other ways of execution are alien to the plan.

Mr. Justice Jackson’s argumentation is deceptive insofar as he derives a
common principle from a decision which clearly and obviously happens to
apply to the “normal case” of his parable of the robbers and can hardly
be applied to any other case. As the case stands, coresponsibility in
any single act could be made to apply to those conspirators only who
foresaw and approved of their comrade’s act.

A legal principle extending the fellow conspirator’s responsibility to
actions not included in their common responsibility is alien to German
law. Whether or not it belongs to Anglo-American law, the application of
such a principle in the present Trial would make punishable acts which
heretofore could not be punished. This would clearly contradict the rule
of _nullum crimen sine lege_, a principle, as I previously emphasized,
acknowledged explicitly by the British prosecutor, too. In view of the
fact that Article 6 can be interpreted in various ways, we should select
from two possible interpretations, as corresponding to the author’s
will, the one which does not contradict the said principle.

There is such a thing as withdrawal from a conspiracy, and also later
entrance into it. The question is: What about responsibility for acts
committed during the period of nonmembership? The Prosecution appears to
be of the opinion that a person entering into the conspiracy thereby
approves anything previously done by any conspirator in pursuance of the
common plan. Such an assertion seems to arise out of the civil law
theory of a subsequent ratification of a business transaction. This
theory is not tenable in criminal law. The Charter does not mention
anything of the sort; after all, the common plan, in the execution of
which the act was perpetrated, was common only to those who were members
at that time. Even if one takes the act of joining the conspiracy to be
an approval of any acts so far committed, the approval of a crime
already committed does not establish partnership in such crime. The
person joining later has nothing to do with these crimes. The same
applies to the withdrawal from the conspiracy. The person withdrawing
can be made responsible only for what happened during his membership,
even if the result has come about only after his withdrawal. Any other
opinion would again lead to the result that an _ex post facto_ law is
being applied. Now, did the 22 defendants participate in a conspiracy
within the meaning of the Indictment, namely, a conspiracy to commit
crimes against peace, usages of war, and humanity?

If such a conspiracy had existed, then Hitler would have been—nobody
can doubt it—the leader of these conspirators. But it has already been
emphasized that a conspiracy headed by a dictator is a contradiction in
itself. Hitler would have ridiculed the suggestion that he had made an
agreement with his Ministers, Party leaders, and generals to wage this
or that war, or to conduct the war by such or such means. He was an
autocrat. He was not concerned with the approval of these men, but
merely with having his decisions executed, whether they agreed with
these decisions or not. Quite aside from legal considerations, Hitler’s
environment, in fact, was quite different from a band of conspirators,
as visualized by the Prosecution before the hearing of evidence. Apart
from a small Party clan, he was surrounded by an atmosphere of distrust.
He trusted neither the “defeatist club” of his Ministers nor his
“generals.”

Such was already the case before the war, and his surroundings during
the war have been described by witnesses with great impressiveness. A
cunning system of secrecy insured that the plans and aims of the Führer
remained unknown to his associates as long as at all possible, so that
his most intimate assistants time and again were taken by surprise by
the events, and, in fact, were shocked to learn some of them only at the
present Trial. This system of secrecy also insured an isolation of the
individual collaborator, since one person was not allowed to know what
the other did. Does this look like a conspiracy? In fact, Hitler
complained at times that the generals were “conspiring” against him, and
used, strangely, this very word while speaking of those who today are
charged with having conspired with him. The hearing of evidence
repeatedly mentions conspiracies, but conspiracies against Hitler. From
a psychological point of view it is, to say the least, highly improbable
that the score of survivors of the Third Reich selected and put in the
dock by the Prosecution should have formed a gang of conspirators in the
sense of the Indictment. In this group of people all homogeneity as to
outlook, background, education, social position, and function is
lacking, and some of the defendants only met in the dock.

The Prosecution considers the Party with its organizations as the
nucleus around which the conspiracy formed. We should, however, in this
connection consider the different attitude displayed by the individuals.
Some of the defendants have never been Party members at all, or, at any
rate, not for a long time, and only a few of them have played an
important part in the Party. Some held top positions in the Party and
its organizations, and devoted their entire activity to the aims of
these organizations, while others did everything in their power to
eliminate from their sphere of activity any influence of Party and SS.

The NSDAP was founded in a period of utter powerlessness of the State
and of general war-weariness of the people at a time when, truly, no
intelligent person thought of a second war, much less of a war of
aggression.

But were not some of the defendants’ aims attainable without war?

Presumably every true German from the bottom of his heart desired the
union of all adjoining German territory with the Reich. This applied to
the Saar territory, Austria, Memel, Danzig, and, as a hope lingering in
the far future, also to the Sudeten territory. In the past they all had
been parts of the German Reich, they all would have returned to the
German Reich already in 1919, had the right of self-determination
solemnly promised to all peoples been realized. But these objectives of
German longing could be reached by peaceful means. And in fact, they had
been reached without a shot or a stroke with the one exception of
Danzig, which would have been managed in the same peaceful way if the
Führer had had a shred of patience and the Poles a shred of good will.

But they neither wanted nor believed in a war. Hitler was thought
capable of large-scale bluffing, but not of launching the catastrophe of
a war. I cannot, therefore, believe in a conspiracy to commit crimes
against peace and the usages of war. May I add two points of general
importance:

(1) The first point refers to Göring’s attitude immediately previous to
the outbreak of war. He was at that time Hitler’s confidant and friend,
the country’s second string, and he is now the chief figure among the
defendants. If there had been, in truth, a conspiracy to launch wars of
aggression at that time, then he would have taken second place within
such a conspiracy, yet it was actually he who tried everything within
his power during the last days of August 1939 to prevent the attack on
Poland, and who tried behind Hitler’s back to maintain peace. How can
this be consistent with a conspiracy for initiating wars of aggression?
Nor did he approve of a war against Russia and strongly advised the
Führer against such a war.

(2) If there had been a conspiracy to commit war crimes, then the war
would have been waged, from the very beginning, with utter ruthlessness
and disregard of rules of war. Just the contrary actually happened. In
fact, during the first years of the war, international law was on the
whole respected. Especially in the beginning every endeavor was made to
wage war with decency and chivalry. If any evidence is needed, a glance
at the orders of the German High Command of the Armed Forces regulating
the behavior of the soldiers in Norway, Belgium, Holland is sufficient
proof.

MARSHAL: The Tribunal adjourns until tomorrow.

      [_The Tribunal adjourned until 5 July 1946 at 1000 hours._]




                   ONE HUNDRED AND SEVENTY-SECOND DAY
                           Friday, 5 July 1946


                           _Morning Session_

THE PRESIDENT: Dr. Stahmer.

DR. STAHMER: I continue.

Number 2. If there had been a conspiracy to commit war crimes, then the
war would have been waged from the beginning with utter ruthlessness and
disregard of rules of war. Just the contrary happened. In fact, during
the first years of the war...

THE PRESIDENT: Dr. Stahmer, the Tribunal thinks you got a little bit
further with your speech.

DR. STAHMER: I had gone somewhat further, that is true; but in order to
get this into the context again I have started again with Number 2, but
if the Court wishes, I can continue where I stopped.

Especially in the beginning every endeavor was made to wage war with
decency and chivalry. If any evidence is needed, a glance at the orders
of the High Command of the Army regulating the behavior of the soldiers
in Norway, Belgium, Holland, is sufficient proof. Moreover, a leaflet
with “10 Commandments for the Conduct of the German Soldier in Wartime”
was issued to the soldiers when they went into the field. Field Marshal
Milch has read them out from his pay book, during this Trial. They all
obliged the soldier to act in a proper manner and according to
international law.

A gang of conspirators at the head of the state, which plans to wage a
war regardless of right and morals, would certainly not send their
soldiers into the field with a detailed written order saying just the
opposite.

I believe the assumption of the Prosecution that these 22 men are
conspirators against peace and the laws of war and humanity is quite
erroneous.

It is up to counsel for the individual defendant to show what connection
his client might have had with the alleged conspiracy.

I just mentioned that Reich Marshal Göring was the second man in the
State. During the Trial the Prosecution also referred repeatedly to this
elevated position of Göring’s and tried to make it the basis of a
special charge against the defendant, pointing out that Göring, by
virtue of this advantageous position, knew about everything, even the
most secret matters, and had the possibility of intervening
independently in a practical way in the course of government business.

This opinion is wrong and is based on ignorance of the importance of his
position. It meant that according to rank Göring was the second man in
the State.

This rank was due to the fact that Hitler, in the fall of 1934, had made
a will and by a secret Führer order had appointed Göring as his
successor in the Government. In 1935 or 1936 this succession was
confirmed in an unpublished Reich law which was signed by all the
ministers. On 1 September 1939 Hitler announced this law in the
Reichstag. In this way the successorship of Göring became known to the
German people.

Göring’s task of deputizing for the Führer in the Government was to
apply only in the event of Hitler’s being incapacitated by illness or
absence from Germany—this occurred when in March 1938 Hitler spent a
few days in Austria. During Hitler’s presence, that is, as long as
Hitler exercised office himself, Göring derived no special powers from
the deputyship. In this instance his authority was limited to the
offices directly under him, and he was not entitled to issue any
official directives to other offices. From this follows that, although
the second man in the State, Göring could neither rescind, nor change,
nor supplement Hitler’s orders. He could give no orders whatsoever to
offices of which he was not directly in charge. He had no possibility of
giving any binding orders to any other office, whether it were an office
of the Party, the Police, the Army, or Navy, nor could he interfere in
the authority of those offices which were not his own.

This position as second man in the State cannot, therefore, be judged as
especially incriminating for Göring; nor is it qualified to serve as a
basis for the assumption of a conspiracy.

The Defendant Göring never participated in the drafting or execution of
a Common Plan or Conspiracy which was concerned with the crimes stated
in the Indictment.

As already emphasized, the participation in such a conspiracy
presupposes in the first place that such a common plan existed at all
and that, therefore, the participants had the intention and were agreed
to carry out the crimes of which they are accused. These presuppositions
are not in evidence in the case of Göring. In fact, one may assume the
contrary. It is true that Göring wanted to do away with the Treaty of
Versailles and to secure again a position of power for Germany. But he
believed he could obtain this goal, if not with the legal means of the
League of Nations, at least with political means alone. The purpose of
rearmament was only to give more weight to the voice of Germany. The
Weimar Government, which could not even express the self-determination
of the Germans after 1918 in the surely very modest form of a
German-Austrian customs union, though they advocated this determination
themselves, owed the lack of success of their foreign policy, in
Göring’s opinion just as in Hitler’s, mainly to the lack of respect for
the German means of imposing power. Göring hoped, strengthened in his
belief by Hitler’s surprising initial successes, that a strong German
army by its mere existence would make it possible to secure German aims
peacefully, as long as these aims kept within reasonable limits. In
politics a state can only have its say and make its voice heard if it
has a strong army to back it up, which demands the respect of other
states. Only recently the American Chief of Staff, Marshall, said in his
second annual report that the world does not seriously consider the
wishes of the weak. Weakness is too big a temptation for the strong.

There was no arming for an aggressive war; not even the Four Year Plan,
the purpose and aim of which have been clearly explained by the
defendant himself and by the witness Körner, was aimed at the
preparation of an aggressive war.

Field Marshals Milch and Kesselring have both testified in perfect
agreement that the Air Force created by the armament program was only a
defensive air force which was not fit for an aggressive war and which
was therefore looked upon by them as a risky proposition. Such a modest
rearmament does not allow for any conclusions of aggressive intentions.

After all this it is clear that Göring did not want a war. By nature he
was an opponent of war. Outwardly also, in his conferences with foreign
diplomats and in his public speeches, he has expressed with all possible
frankness his opposition to war at every opportunity.

The testimony of General Bodenschatz explains most clearly the attitude
of Göring toward war. He knew him intimately from the first World War,
and he has exact knowledge of the attitude of Göring toward war from
frequent conversations he has held with him. Bodenschatz states that
Göring repeatedly told him that he knew the horrors of war very well
from the first World War. His aim was a peaceful solution of all
conflicts and to spare the German people, as far as possible, the
horrors of a war. A war was always an uncertain and hazardous thing and
it would not be possible to burden with a second war a generation which
had already experienced the horrors of one great world war and its
bitter consequences.

Field Marshal Milch also knows from conversations with the Defendant
Göring that the latter opposed a war, and that he advised Hitler in vain
against a war with Russia.

In public the Defendant Göring, in his many speeches since 1933,
frequently emphasized how he had his heart set on maintaining peace and
that rearmament had only been undertaken to make Germany strong
outwardly, thus to enable her to play a political role again.

His serious and honest will for peace can best be seen from the speech
which he made at the beginning of July 1938 in Karinhall before all the
Gauleiter of the German Reich. In this speech he emphasized
energetically that the foreign policy of Germany had to be directed in
such a way that it would under no circumstances lead to war. The present
generation had still to get over the last world war; another war would
shock the German people. Göring had not the slightest reason to hide his
true opinion before this gathering, which consisted exclusively of the
highest Party leaders. For that reason, this speech is a valuable and
reliable proof for the fact that Göring really and truly wanted peace.

How deeply the Defendant Göring was interested in maintaining good
relations with England is shown by his conduct at the conference with
Lord Halifax in November 1937 at Karinhall, in which Göring, with full
candor, put before Lord Halifax the aims of German foreign policy: (a)
Incorporation of Austria and the Sudetenland into Germany; (b) return of
Danzig to Germany with a reasonable solution of the Corridor problem. He
pointed out at the same time that he did not want to reach these aims by
war and that England could contribute to a peaceful solution.

The meeting in Munich in the fall of 1938 was arranged at his
suggestion. The conclusion of the Munich Pact is essentially due to his
influence.

When, due to the occupation of the remainder of Czechoslovakia in March
1939, the relations with England had deteriorated considerably because
England was very angry about this step of Hitler’s, which was a
violation of the Munich Pact, Göring made serious efforts for the
restoration of normal relations. In order to achieve this goal he
arranged the meeting, described by the witness Dahlerus, with English
industrialists at the beginning of August 1939 in the Sönke-Nissen-Koog.
In an address he pointed out that under no circumstances must a war with
England come about, and he asked those present to contribute to the best
of their ability to the restoration of good relations with England.

When, after the often-quoted speech of Hitler’s to the
commanders-in-chief of the Armed Forces on the Obersalzberg on 22 August
1939, the danger of a war became imminent, Göring immediately—that is,
already on the following day—summoned the witness Dahlerus from Sweden
and endeavored, passing over the Foreign Office, to reach an agreement
with England for the prevention of war on his own responsibility.

The objection was raised here that Göring had left Dahlerus in the dark
as to his true intentions. His efforts were not aimed at the maintenance
of peace but only at persuading England to deny to the Poles the support
guaranteed to them and thus to separate England from Poland, which would
enable Germany, after this separation, to exert pressure on Poland to
submit to the German demands or to attack Poland and to realize her
plans toward Poland without any risk. Any doubt about the honest will
for peace is unjustified; the imputed intention was far from Göring’s
thoughts.

If this objection is substantiated by the fact that Göring did not
inform the witness Dahlerus either of the content of the Führer speech
of 23 May 1939 or that of 22 August 1939, then it cannot be considered
relevant and nothing is gained by it. Under no circumstances could
Göring inform a third person—and especially a foreigner—of those
strictly confidential speeches without exposing himself to the
accusation of high treason or treason against his country. These
speeches were all without significance as far as the task given to the
witness was concerned, especially since the peculiar situation arose
here that Göring—after the efforts of the diplomats had reached a
deadlock—as a last resort knew of no other way out than to use his
personal relations, his personal influence, and his personal prestige.

The only thing that mattered for the activity of Dahlerus was that the
foreign political situation, which had become dangerously critical
through the quarrel between Germany and Poland and of which the witness
was fully aware, had to be straightened out by an appropriate attitude
on the part of England.

That Göring’s aim was not to separate England from Poland has been
clearly proven by the fact that Göring, to begin with, had transmitted
to the British Ambassador in Berlin, Henderson, the text of the note
which contained the propositions made by Germany to Poland—propositions
which were called moderate by Henderson—and that, hereby, he tried to
come to direct negotiations with Poland. Poland, however, obviously did
not want an agreement with Germany. Several circumstances point to that.

The conflict with Poland lasted for almost a year. Why did Poland not
ask for a decision by a court of arbitration on the basis of the
concluded arbitration agreement? Why did Poland not appeal to the League
of Nations? Obviously Poland did not want any arbitration regarding
Danzig and the Corridor.

The utterance of the Polish Ambassador, Lipski, to the First Secretary
of the British Embassy, Mr. Forbes, which was stated by the witness
Dahlerus, is even greater proof of the unwillingness of Poland to come
to an understanding. Lipski said he was not interested in any note or
proposition by Germany; he was convinced that in the event of war there
would soon be a revolt in Germany and the Polish Army would march in
triumph to Berlin. This intransigent and incomprehensible attitude of
Poland obviously finds its explanation in the fact that she felt too
strong and secure as a result of England’s assurance. The reference to
the imminent revolt makes one believe that Poland was informed of the
plans of the Canaris group. There can therefore be no question of an
ambiguous attitude or false play on the part of Göring.

The serious will of the Defendant Göring to maintain peace and to
restore good relations with England is expressly recognized by
Ambassador Henderson, who, due to his thorough knowledge of the German
conditions and his connections with the leading men of Germany, summed
up Göring correctly. I refer here to his book _Failure of a Mission_, in
which, on Page 83, it says:

    “I would like to express here my belief that the Field Marshal,
    if it had depended on him, would not have gambled on war as
    Hitler did in 1939. As will be related in due course, he came
    down decisively on the side of peace in September 1938.”

Lord Halifax also, according to the information he gave, had no doubts
that Göring’s efforts for the prevention of war were sincere.

That after the outbreak of the war, which he had wanted to prevent with
all the means at his disposal but had been unable to prevent, Göring, as
Commander-in-Chief of the Air Force, exerted all his strength to win the
victory for Germany is not contrary to the sincerity of his will to
avoid the war. From that moment on he knew only his duty as a soldier to
his fatherland.

At different times Hitler made addresses to the commanders-in-chief of
the Armed Forces, thus for instance in November 1937, on 23 May 1939,
and on 22 August 1939. The Defendant Göring at his personal
interrogation has already given extensive explanations as to the
importance and the purpose of these addresses. For the question of
whether the fact that he was present at these addresses might constitute
perhaps a complicity in a conspiracy in the sense of the Indictment, it
is important that on these occasions Hitler solely and one-sidedly made
known his own opinion about military and political questions. The
participants were only informed of what possible political developments
Hitler expected. The participants were never asked for their opinion nor
had they even any possibility to express their criticism of Hitler’s
opinion. Hitler did not ask his generals to understand his orders; all
he asked of them was to carry them out.

His autocratic leadership of the State was exclusively directed by the
principle _sic volo, sic jubeo_, which he carried through to its logical
conclusion. How rigidly Hitler followed this principle can be seen from
the fact that after the address of 23 May 1939—as Milch stated in his
testimony—he expressly forbade all participants to comment on the
speech, even among themselves. That Hitler was irrevocably resolved on
an aggressive war could not be deduced by the listeners of the said
speeches, and they did not do so. This has been confirmed unanimously by
all witnesses who were present when those addresses were given.

At that time Hitler had actually not yet planned a war. In that respect
the testimony of Field Marshal Milch is very informative. When the
witness, in the months following the speech of 23 May 1939, repeatedly
pointed out to Hitler in personal reports that the Air Force was not
ready for action with its bombing squadrons and had hardly any stocks of
bombs, Hitler refused to give an order for the production of bombs and
remarked that this manufacturing was unnecessary and superfluous. Hitler
persisted in this refusal, although Milch pointed out that the
production would take several months. An order to that effect was given
by Hitler only on 20 October 1939.

Hitler’s discourse before the commanders-in-chief can be easily
explained by the odd inclination of Hitler frequently to develop
political ideas without ever thinking of their realization. In each case
his practical policy resulted from the requirements of the actual
development.

The defendant is accused of having plundered the territories occupied by
Germany, thereby violating the Hague Convention concerning Land Warfare.
This accusation is not justified.

During his examination the Defendant Göring has explained in detail,
with absolutely noteworthy reasons, that the Hague Convention on Land
Warfare dating from the years 1899 and 1907 cannot be made to apply to a
modern war, since they had become obsolete and insufficient in some
respects at the beginning of World War II. At the time when they were
drafted, air warfare, economic warfare, and psychological warfare were
still unknown. Total war, which put the entire people and the entire
national economy without exception at the service of the war, was also
not known. Especially, economic warfare was not considered at all. Due
to this gap, there is no international law which has been generally
recognized for economic warfare. Therefore the old statement of Hugo
Grotius that everything is permitted in war (_quod ad finem belli
necessarium est_) applies to economic warfare.

Naturally, this principle only applies so far as it has not been
affected specifically by a differing settlement through treaties.

The following must be said about the legal situation as it stands:

Until the beginning of World War I it was generally acknowledged in
international law—in any case as far as land warfare is concerned—that
the war does not affect any private legal relations between the citizens
of the belligerent states, that private property on principle was
inviolable, that the war would only be pursued with arms, and that the
enemy civilian population would not be affected by it. This method of
warfare suffered a basic change at the outbreak of World War I, when
England, in the field of naval warfare, applied her interpretation of
war of people against people. At that time the enemy powers resorted to
the policy of paralyzing the entire German national strength,
disregarding all established rules of the law of naval warfare and of
neutrality law by cutting off the necessary raw materials and import of
food. This new type of warfare corresponded to the Anglo-Saxon
interpretation, which was joined by France at the beginning of World War
I, that is, that war is not only fought against the troops in combat but
against the entire population of the enemy. The citizen of the enemy
state is the enemy of England; his property is enemy property, which is
subject to seizure by the British Government. With this, naval warfare
was not only directed against the combat forces, but also against the
peaceful subjects of the belligerent enemy. This goal was achieved by
the total blockade carried out by England. The Hague Convention did not
contemplate a total blockade in the form in which it was carried out by
England. This blockade made any supplying of Germany through neutral
countries impossible.

Under these circumstances Germany cannot be blamed for applying to
warfare on land the method used by England by means of her naval power.

This fact leads to the following consideration:

The rules of land warfare, according to their meaning, used to apply to
land warfare. There the principle of protection of private property
obtained. In naval warfare, however, private property was unprotected.
Now, is it possible for the rules of land warfare with their
restrictions to apply to a combined sea and land war? Would it be just
that merchandise should be taken away from a party at sea who would not
be allowed to touch similar goods belonging to the other party on land?

According to established international law, the principle applies now as
before that private property is actually inviolable during war. This
principle suffers exception only insofar as the Hague Convention on Land
Warfare permits certain encroachments on private property caused by an
emergency in which the state may find itself, which are deemed justified
to the extent in which they appear necessary in the interests of
self-preservation of the state. Within this scope, therefore, certain
actions are permitted during war which are not normally consistent with
the laws of war and actually contrary to international law.

By the fact that enemy warfare disregarded the established rules of
naval warfare, Germany was driven into a state of economic emergency. If
the enemy powers had observed this established law of naval warfare,
then Germany could have supplied herself through neutral countries, and
the state of economic emergency during the war would not have arisen.
But since the enemy powers failed to observe the established blockade
regulations, how could they expect Germany to observe the regulations on
requisitioning, which form part of the rules of land warfare?

Through the action of the enemy powers Germany was thrown into a state
of emergency. The prerequisite for the state of emergency within
international law is, according to the prevailing theory, an existing or
imminent threat of danger to the state, which it is impossible to avert
in any other way and which endangers to the utmost the vital interests
as well as the independence and existence of the state.

Thus, wherever the vital interests of a state are threatened in this
manner there prevails a state of national emergency; this has the legal
effect that such a state does not act illegally when committing a
violation of international law necessary for the repulsion of imminent
danger.

The economic situation of Germany became extremely precarious during the
course of World War II by the action of the enemy powers. All
connections with neutral countries were made impossible for Germany by
the total blockade, so that supplies of raw materials necessary for the
conduct of the war and of food for the feeding of the civilian
population were cut off.

Germany was therefore forced, in order to support her own economy which
would otherwise have collapsed, to use the stocks of raw materials and
food available in the occupied territories and all other items necessary
for the continuation of the war, for herself, the interests of the
population in the occupied territories being given due consideration. In
this, the principles established in the preamble to the Convention
concerning the Rules and Customs of Land Warfare, dated 18 October 1907,
as they result from the customs existing among civilized nations, from
the laws of humanity, and from the demands of public conscience, were
strictly observed. A renunciation of the right to use these resources in
the occupied territories would have meant the abandonment of the
independence and existence of the state; it would have meant
unconditional submission. An emergency involving submission during war
is the supreme and most fatal emergency in the life of a nation.

By referring to the state of emergency, however, only such actions are
covered which are necessary to remove a danger which could not be
averted otherwise. The limitations naturally fluctuate, and it is not
always easy to determine in individual cases whether a genuine state of
emergency exists. Here the Tribunal will have to consider in favor of
the defendant the special circumstances and the wartime conditions,
which are difficult to appreciate.

It has not been proved that the defendant intentionally or carelessly
infringed these limitations.

It must be left to the examination of the Tribunal whether the defendant
personally can be held responsible for a violation, possibly committed
intentionally or carelessly—a violation which has been committed
exclusively by him in his capacity as plenipotentiary of the Führer—or
whether in such a case there is only a liability of the state. The
Defense are of the opinion that in this case, too, the problem concerns
only a violation of international law which does not constitute personal
liability.

Exceptional conditions prevailed in the eastern theater of war because
there was no private economy in the East, but only a national economy
strictly regulated by a central office. The juridical situation here was
such that property of the enemy state could generally be claimed as war
loot. For the rest, a particularly careful regulation was made, which
was defined in the so-called “Green Folder.” The regulations contained
in this folder did not suggest any looting or annihilation of the
population, as asserted by the Prosecution. Its tenor was rather the
mobilization of economy and the rules for keeping it going, the seizure
and the orderly utilization of stocks and traffic installations in the
zones to be occupied in the course of fighting, taking into account the
fact that far-reaching destruction was to be expected owing to the
Russian attitude. The folder does not contain any order or indication
which might burden certain groups of the population beyond the needs of
war. This decree, for which the Defendant Göring has taken full
responsibility, does not furnish any reason for disapproval.

In all this one must not overlook one thing. This war was of such
bitterness, such proportions, such duration and totality as the creators
of the Hague Convention certainly never had or could have even remotely
imagined. It was a war in which nations fought for life or death. It was
a war in which all values had changed. Thus the defendant was quite
right when he declared, “After all, in a life-and-death struggle there
is no legality.”

From the standpoint of emergency, a justification can also be found for
the deportation of workers from occupied territories to Germany. In his
testimony the defendant stated in detail all the reasons which in his
opinion made this measure necessary. For the rest, the counsel for the
Defendant Sauckel, Dr. Servatius, will review these matters in detail.
Therefore, I do not need to concern myself with further considerations
in this respect.

The defendant has made a comprehensive statement in regard to the charge
of spoliation of art treasures, a statement which will be referred to in
order to justify his conduct. In addition it will be observed that Reich
Marshal Göring was not directly engaged in the safeguarding of art
treasures in Poland. Not one of these art treasures did he take for his
own collection. In this respect the defendant cannot be incriminated in
any way.

By order of the Führer such works of art in France as were owned by Jews
were temporarily confiscated for the benefit of the Reich. They were
considered as derelict property, because their owners had left the
country. Of these confiscated objects, with the express approval of the
Führer, Göring received a small part, though not for himself but for the
gallery he had planned, in which he also intended to incorporate the
works of art already in his possession. He wished to acquire these
objects at a price estimated by French art experts, the proceeds to be
distributed among the dependents of French war victims.

The juridical situation, therefore, was as follows:

The objects were confiscated by decree of the Führer for the benefit of
the German Reich. By this confiscation the former owners lost their
right to possession and it was transferred to the Reich. Such objects as
were ceded to him, Göring acquired from the Reich as their present
owner. The Reich obviously saw in this a step which, though it was
proved premature by the course of events, was intended to anticipate the
peace treaty to be concluded at the end of the hostilities, when the
final accounts would be made. This is similar to the confiscations and
seizures of property carried out at present in Germany in view of the
ultimate peace treaty.

Whether the Reich Government was juridically entitled to confiscate the
goods and to become their owner is a moot question. A solution of the
question is no longer necessary, because Göring acted in good faith in
the matter of this acquisition. In his testimony he emphasized his
belief that he was entitled to acquire these things, as they had been
previously confiscated by a Führer decree. In consideration of these
facts there cannot be any question of looting.

In any event there can be no objection to the purchasing of articles in
the course of normal business transactions, which the defendant was
offered spontaneously, the sellers being only too eager to dispose of
them in view of the good price they received. The same applies to
objects which the defendant acquired through a voluntary exchange, in
which the other party to the contract enjoyed the same rights as
himself.

I will now deal with the accusation of the shooting of 50 officers of
the British Air Force after their escape from the prisoner-of-war camp
Sagan.

The Indictment reads as follows: “In March 1944, 50 officers of the
R.A.F., who had escaped from Stalag Luft III in Sagan, were murdered
after their recapture.” According to a later declaration of the
Prosecution the circumstances were as follows: During the night of 24 to
25 March 1944, 76 officers of the R.A.F. escaped from the
prisoner-of-war camp Stalag Luft III in Sagan. 50 of these officers were
shot by the Security Service after they had been recaptured.

Investigation must bear on the following points: Who gave the order for
the shooting? Did Reich Marshal Göring play any part in this affair? Did
he actually take part in the drafting of the order to shoot these 50
airmen? Did he approve the measure, although it was a grave offense
against Paragraph 50 of the Geneva Protocol dealing with the treatment
of prisoners of war?

The Prosecution states that the Defendant Göring collaborated in the
drafting of this order. It referred, among other things, to the reports
which Generalmajor Westhoff and Criminal Counsellor Wielen drew up while
they were in British custody. But the interrogation of these witnesses
in Court, as well as the bringing forward of further evidence, which has
been so carefully gone into before the Tribunal, has shown in the
meantime that the previous statements of Westhoff and Wielen were
inaccurate, and in respect to Göring’s presence at the conference and
his knowledge of the shooting order were only based on suppositions
which had their roots in the fact that it was a question of a
prisoner-of-war camp for airmen. The result of the evidence was as
follows:

At this general conference on 25 March 1944 Himmler reported the escape
of the 76 officers to the Führer. For this Hitler severely reprimanded
Field Marshal Keitel. He considered the event a great danger to public
security, since the escaped officers might assist the 6 million
foreigners in Germany in the organization of an armed revolt. Then
Hitler gave the order: “The prisoners will remain with Himmler.” Keitel
definitely refused to hand over to Himmler the 15 officers who had
already been recaptured by the Armed Forces and returned to the camp,
and these officers remained unharmed.

At this general conference in the presence of Keitel, Hitler did not
order the shooting of the prisoners who were to remain in Himmler’s
hands. Neither Keitel nor Jodl expected such measures. Jodl expected the
escaped prisoners to be sent to a concentration camp for some time.
Keitel and Jodl agree in their testimonies that Reich Marshal Göring did
not attend this meeting. Therefore, it cannot possibly be correct that
Field Marshal Keitel declared in a conversation with General Westhoff
that he had been reprimanded by Göring at the general conference on
account of the prisoners’ escape.

General Koller has testified that General Korten assured him over the
telephone, about the end of March or beginning of April 1944, that the
Luftwaffe, that is, the Reich Marshal and Korten himself, were not
involved in the order and had only been informed of it later.
Furthermore Koller testifies that the Reich Marshal was extremely angry
about the shooting. These statements are completely in accordance with
the declarations of Reich Marshal Göring, who was on vacation at the
time of the conference with Hitler. The fact of the escape reached him
only through a telephone report by his adjutant. It was only after his
return from vacation, some time around Easter 1944, that he learned
through his Chief of General Staff, Korten, about the fact that
shootings of prisoners had taken place. Reich Marshal Göring was much
upset about this last report because he condemned the deed in itself
and, moreover, feared reprisals for his own airmen. Upon inquiry,
Himmler then confirmed the executions to Reich Marshal Göring with the
justification that an order to that effect had been issued to him by
Hitler.

It is made clear by this conversation how the execution was possible and
how its perpetration could remain concealed from the Wehrmacht. In the
absence of Keitel and Jodl, Hitler issued the order to Himmler to carry
out the execution and Himmler thereupon, unknown to the Wehrmacht,
immediately passed on the order to the Reich Security Main Office, that
is, after Kaltenbrunner’s approval, to Müller or, as the case may be, to
Nebe.

Not only did Reich Marshal Göring remonstrate with Himmler because he
had executed the order without informing Göring, but also raised the
most vigorous protest against this measure in a subsequent interview
with Hitler. This resulted in heated controversies between Göring and
Hitler.

As Göring strongly condemned such proceedings, he requested shortly
afterward that the prisoner-of-war camps be taken in charge by the OKW.
On being questioned Field Marshal Keitel confirmed, as a witness, that a
few weeks after the occurrence he received a letter from the General
Quartermaster of the Luftwaffe, in which the Luftwaffe requested the
taking over of its camps by the OKW.

This result of the examination of evidence, correcting the initial
statements of the witnesses Westhoff and Wielen, which are contradictory
in many respects, as well as Keitel’s earlier declaration of 10 November
1945, also justifies the assertion that Reich Marshal Göring was in no
way involved in this affair, that he condemned it most severely when he
was informed of it, and that he, therefore, cannot be called upon to
answer for this extremely regrettable and reprehensible order, which it
was not within his power to prevent.

The Prosecution has gone on to the question of “lynch law” as resorted
to by the German population in isolated cases in 1944 when enemy airmen
had been shot down. For these occurrences, the defendants, especially
Reich Marshal Göring, are held responsible. The charge that the
Defendant Göring or the Wehrmacht are in any way involved in this
action, that they issued orders or instructions to this effect or even
merely approved the action, is seen to be entirely unjustifiable. The
examination of evidence in this case has thoroughly cleared up the
matter in favor of the defendant.

To support their charges against Reich Marshal Göring, the Prosecution
invokes first of all a protocol of 19 May 1944 (Document L-166)
concerning the so-called “Hunting Conference” which was held on 15 and
16 May 1944 under the direction of the defendant.

Numbered as Item 20 of this memorandum is a statement by the defendant
saying he would suggest to the Führer that terrorist enemy airmen be
immediately shot at the scene of their offense. The defendant most
definitely denies having made any pronouncement to this effect and
justly points to the following circumstances which belie any such
statement: The session lasted for 2 days, and numerous technical and
organizational questions were discussed. The question touched upon in
Item 20 had nothing whatever to do with the agenda for the rest of the
session, least of all with the purpose of the session. The remark is
placed in the midst of themes which deal with matters of an entirely
different nature and has no point in this connection. Besides, Göring,
had he approved and wished it, could himself have immediately issued
such an order without further ado, as he knew the Führer’s attitude on
this point.

The decisive fact is that the statement is in the sharpest contradiction
with the fundamental attitude of the defendant. He always stood for the
view that the enemy airman who was shot down was a comrade and must be
treated as a comrade, a fact which I have already remarked upon in
another connection. Moreover, in the question as to how terrorist airmen
were to be treated, he defended his position with all frankness against
the conception held by Hitler and made no secret to Hitler of his
entirely different opinion.

In view of this unwavering attitude and its resulting policy, it is
utterly out of the question that he should suddenly have urged Hitler to
issue the above-mentioned order against the terrorist airmen—an order
which he opposed with all his might and the execution of which he sought
to prevent by every means as soon as it came to his knowledge. And he
did succeed in fact in preventing the execution of this order. If the
terrorist airmen were actually discussed at the conference, this
discussion could only have occurred with the implication that the Führer
suggested such a measure.

With reference to the minutes, the following general remarks must be
added: They consist of summary notes by a young officer, stretching over
a two-day session during which there had been a great deal of talking
and discussion. Experience acquired in many other cases has shown that
such recordings are often very unreliable and have even at times
reproduced the subject of the discussion in an utterly distorted form,
precisely because the person taking notes—especially when several
participants were present and talking at random—could not follow the
course of the discussion and consequently did not reproduce the
substance of it accurately, especially when, in addition to this, he was
mixing up the people; this explains many factual errors as well as the
inadequacy and unreliability of such records. The minutes were never
submitted to the defendant. He has not therefore been able to verify
their contents nor to correct their errors.

Records of this sort, which were taken down in the way described above
and which are not submitted for perusal and approval by the parties
concerned, are worthless in the production of evidence. They cannot in
themselves alone serve as an adequate means of proof either to charge or
convict the defendant. They can, therefore, only be made use of to the
detriment of the parties implicated when the content matter is confirmed
by other material brought for evidence from sources other than these
minutes. In the present case there is no confirmation from other
evidence that Göring actually made the statement contained in Item 20 or
made a request to Hitler to that effect.

The note dated 21 May (Document 731-PS) fails to provide support for the
claim. The note, “General Korten, according to a speech by the Reich
Marshal, reports...” cannot, in view of the defendant’s uncontested
statement, possibly mean that the Reich Marshal delivered an address on
this matter in Hitler’s quarters but solely that Korten reported on this
subject to the Reich Marshal and that Korten informed the Reich Marshal
of Hitler’s order.

The rest of the examination of evidence has made it clear beyond doubt
that Göring was against a special treatment of enemy terrorist airmen
who had been shot down and that he opposed Hitler’s order.

The witness Colonel Bernd von Brauchitsch pointed out during his
interrogation on 12 March 1946 that in the spring of 1944 there was a
sudden increase in losses among the civilian population through machine
gun attacks by enemy airmen. These attacks by enemy airmen were
directed, within Germany, against civilians working in the fields,
secondary railway lines without any military importance, and against
pedestrians and cyclists. This constituted a gross violation of the
Hague Rules of Land Warfare, according to which any combat act against
the noncombatant population of the country is prohibited; and any attack
or shelling of open cities, villages, residences, or buildings is
forbidden.

According to the opinion of the witness Von Brauchitsch, this behavior,
which quite evidently violated international law, caused Hitler to order
specific measures against these aviators, besides general defensive
measures. In this regard Hitler advocated, as far as it is known to the
witness, the most severe measures; lynch action was to have a free run.

This attitude of Hitler toward the violations of international law by
enemy aviators, however, did not meet with the approval of the Armed
Forces, especially not with that of Reich Marshal Göring and his Chief
of Staff, General Korten. Both of them did condemn to the utmost the
attacks of enemy aviators, which were exclusively directed against the
defenseless civilian population. However, they nevertheless opposed the
handing over of defenseless, shot-down aviators to the aroused mob for
lynch action; and they did not consider such measures to be an
appropriate means of combating this conduct, however much in violation
of international law.

The witness General Koller expressed himself to the same effect. Early
in June 1944 General Korten informed this witness of the fact that the
Führer intended to decree an order to the effect that terrorist aviators
were to be surrendered to public fury.

In the course of repeated conversations the witness Koller and General
Korten arrived at the opinion that the conception of the Führer must be
rejected. They certainly considered the direct attacks of low-flying
enemy planes on individual civilians, women and children, concentrations
of civilians, school classes and kindergartens out on walks, farmers at
work in the fields, as well as attacks on public passenger trains and
hospitals, to be ruthless. However, the two did not see a way out or a
solution of the difficult problem in the Führer’s order. They were of
the opinion that such an order was contrary to basic military
conceptions, the Articles of War, and international law, and that it
would give rise to numerous evils through which both enemy and German
crews would come to harm. And finally such an order might exercise, by
its effects, a harmful influence on the morale of German crews.

All these reasons caused the Armed Forces to reject Hitler’s demand, and
their attempts were now directed toward preventing the conception of
Hitler from being put into practice. The witness Von Brauchitsch
credibly states that the Armed Forces now looked for a way out finally
found in the fact that the higher command levels were deceived by
measures which were not actually carried out.

The witness Von Brauchitsch was ordered by Reich Marshal Göring to
define in discussions with the OKW the concept of terrorist aviators. In
the subsequent discussions and exchanges of correspondence those cases
were mentioned which represented violations of international law and
which were to be considered criminal acts. By this definition of the
concept, lynch law was to be prevented. The exchange of correspondence,
which lasted for quite a long period of time, showed the tendency of the
office to protract the matter as much as possible.

The witness Koller is justified in emphasizing that this exchange of
correspondence shows every sign of a “delaying action to gain time,”
that is, those concerned either did not want any decision or at least
wished to postpone it as long as possible.

In particular the marginal note on Document D-785, Exhibit GB-318, “No
answer to be obtained from Commander-in-Chief of the Air Force,” admits
of the conclusion that the Reich Marshal purposely wanted to prolong the
matter. Furthermore Reich Marshal Göring, as can be clearly seen from
the letter of 19 June 1944, maintained the opinion that in every
instance he considered legal procedure against terrorist aviators as
definitely necessary. Where it is stated in a subsequent document of 26
June 1944, “The Reich Marshal agrees with the formulation as
communicated defining the concept of terrorist aviators and with the
suggested procedure,” such agreement with the procedure refers
exclusively to the procedure of publication suggested in the final
paragraph of the letter of 15 June 1944, for which Reich Marshal
Göring’s approval had been requested. That Reich Marshal Göring until
the end of the war maintained the old aviator standpoint, according to
which enemy aviators, once they have been shot down, are to be
considered and treated as comrades, was not only expressly deposed by
the witness Field Marshal Milch, but is also emphasized by General
Koller in the following words:

    “Notwithstanding occasional expressions of displeasure, the
    attitude of the Reich Marshal always remained correct and
    chivalrous in accordance with the flying tradition which he had
    retained from the first World War and frequently emphasized. In
    understandable anger about great difficulties in air defense,
    and pressed by the Führer, he perhaps once in a while used
    harsher words which were quickly forgotten.”—And the witness
    does not know of any case—“in which such a fit of ill-humor
    caused the Reich Marshal to take incorrect or harsh measures
    against members of the enemy air forces.”

The behavior of the Air Force as a whole was also correct and humane at
all times. To fight chivalrously was a matter of honor with the German
aviators. The Air Force as well as the Defendant Göring retained this
point of view, although as Koller expressly mentioned, the flying
personnel felt extremely bitter over the strafing attacks on German
crews suspended on parachutes and individual hotheads spoke of equal
measures as reprisals.

The best testimonial for the exemplary comradely behavior of the Air
Force even toward an enemy who did not observe the rules of warfare can
be seen clearly from the description of the witness Koller about the
establishment of a maritime life-saving service of the Air Force, which
brought aid to Germans and enemies in equal measure and which carried on
despite enemy attacks in violation of international law.

It can thus be said that the Armed Forces and the Defendant Göring
rejected lynch law, as well as all procedure against the terrorist
aviators not in accordance with legal regulations, and did not issue any
orders to troops under their command; in no case have enemy aviators
been shot by the Air Force or by the Army, or handed over to the
Security Service (SD).

The Prosecution accuses the Defendant Göring of having established a
reign of terror in Prussia immediately after 30 January 1933 in his
capacity as Prussian Minister of the Interior and soon afterward as
Prussian Prime Minister, in order to suppress all opposition against the
Nazi program. In order to carry out his plans he had used the Prussian
police, which he had ordered as early as February 1933 to protect the
new government by proceeding ruthlessly against all political opponents
without consideration of the consequences. In order to safeguard and
consolidate power, he had created the dreaded Secret State Police and
established concentration camps as early as the spring of 1933.

To these accusations the following is to be said:

All this was only natural and cannot serve as an accusation against the
defendant; rather would it have been a severe violation of the duties
entrusted to him, if he had not devoted himself with all his strength to
the safeguarding of the new government and taken every imaginable
precaution in order to make any attack on this new government impossible
from the very beginning. In order to achieve this goal, the first step
concerned the police institutions.

It only remains to be examined whether the means which the defendant
considered it necessary to apply were objectionable. The question must
be answered in the negative because of the following considerations:

In every state the police is the inner-political instrument of power; in
every state its task is to support the government, to protect it in
every direction and to render the disturber of the peace and the
violator of the law harmless, if necessary, by force of arms. The
defendant assigned these tasks to the police under his direction, whom
he ordered, in the speech mentioned by the Prosecution, to act
energetically and to fulfill their duties conscientiously. Why such an
appeal for the performance of duty should not be permissible is
incomprehensible.

In his interrogation the Defendant Göring described expressly for what
reasons and along which lines he considered a reorganization of the
police necessary, and these directives cannot be objected to.

I should like to point out in this connection that according to the
prevailing rules of international law a sovereign state has a right to
regulate its internal affairs as it deems fit. The reform of the police
is an exclusively internal affair. The violation of generally recognized
rules of international law is, therefore, out of question in this
respect.

A political police was also in existence in Prussia before the
assumption of power. Before 30 January 1933 it was called Police
Department 1a, which among other things had to watch and to combat
political adversaries, at that time the National Socialists and
Communists in particular. Such a police, dealing with the same tasks,
was also needed after the assumption of power in order to protect the
new state against attacks which threatened it, in particular from the
very strong Communist Party.

In order to make clear that this department of the police was charged
exclusively with safeguarding the state against enemies of the state it
was named “Secret State Police.”

As long as the Defendant Göring was head of the Police—this was, in
fact, the case only until 1934, when Himmler was put in charge—he
strictly confined himself to the tasks prescribed to him and did not
transgress his authority, and no misuse of power worth mentioning
occurred. Nor has the evidence produced shown anything against the
Defendant Göring for this period of time. Should, at a later date, the
Secret State Police have transgressed their authority and committed
illegal acts, the defendant had no knowledge of it and did not approve
of it. For mistakes and crimes committed by his successors, which
remained unknown to him, he cannot be held responsible.

Now there appeared before the Court a witness whose testimony was very
incriminating for the defendant. This was the witness Dr. Gisevius. The
defendant refuses to deal with this witness and his statement. He merely
wishes to point out that this statement is untrue in all points which
incriminate him. The conclusiveness of the witness’s statement depends
on whether he is considered to be credible or not. Dr. Nelte has agreed
to deal with this question extensively, so that, in order to avoid
reiterated statements, I shall refrain from further declarations.

Naturally, the assumption of power by the National Socialist Party met
with some resistance, and in particular the leftist parties were
anything but satisfied with the situation thus created. The opponents
were by no means weak either numerically or in the means at their
disposal. The new rulers were, therefore, apprehensive of serious danger
to their power if they allowed the opposition parties to continue their
activity without hindrance; accordingly they had to take preventive
measures against such dangers in good time. In order to stabilize their
own power and to nip in the bud any possible source of unrest, the
Defendant Göring considered it necessary for reasons of state to arrest
at one blow both leaders and officials of the Communist Party and its
organizations. The defendant himself has spoken at length explaining his
reasons for such acts. For the removal of danger and to insure the
safety of the state, the measures taken by the defendant were, for the
Government, a necessity caused by the unrest of the time. Since it was a
preventive measure, it was not requisite before a provisional arrest
that a criminal act against the Government had already been committed or
was obviously on the verge of being committed. The fact of membership in
itself and previous activity in that party was sufficient to warrant
arrest as a political act of self-protection on the part of the
Government.

Such considerations very soon after the assumption of power, led to the
establishment of concentration camps, of which there were two at the
time when the Defendant Göring was at the head of the Police. The
purpose of such camps was to hold temporarily politically unreliable
persons, who might be of danger to the new state, until they had either
adapted themselves to the new political conditions or until the power of
the state had become so great that such persons could no longer endanger
it.

The legal basis of this institution was the Reich President’s decree of
26 February 1933 for the protection of people and state. Reich President
Von Hindenburg issued this decree on the basis of Article 48, Paragraph
2, of the Reich Constitution, in order to prevent Communist armed
risings dangerous to the state; accordingly, the decree was perfectly
constitutional. The decree temporarily suspended certain constitutional
rights and declared legal, among other things, the restriction of
personal liberty.

The establishment and use of concentration camps was founded, according
to the defendant’s ideas at the time, on the revolutionary conviction
inherent in the victorious Movement that it was the sole expression of
historical truth, that it alone represented the right path, and that
therefore everything was wrong that stood in its way.

There was no political discussion of the right political concept based
on logical arguments, as in ideologically neutral liberalism; there was
only the totalitarian establishment of a popular regime based on creed
as the historically necessary truth.

Any person not caught up by this Movement but; on the contrary, opposing
it, was therefore to be removed as an enemy of the true order. Under
such conditions, the person concerned could not simply be punished for
an infringement of specific rules in the traditional course of justice;
but, according to the opinion of the National Socialist Government, he
deliberately segregated himself from the newly found community of the
people and from every foundation for any legal institution. He had
therefore to be removed. There was, accordingly, no question of
punishment but of a political purge based on ideological intolerance.
Therefore no tribunal or administrative procedure was allowed on behalf
of the persons concerned for the examination of the police proceedings.
The individual who excluded himself from the community was not entitled
to legal guarantees which the Constitution provided for his fellow
countrymen. And a fellow countryman was he only who recognized such a
community. In handling enemies of the people not only legal principles
were applied, but also the viewpoint of the necessities of state.

Since it was an act of political expediency, the Defendant Göring could
decide in some cases on his own responsibility that there was no
necessity for further confinement and could use all his influence to
procure the liberation of individuals who did not endanger the security
of the state. In that case it was not a question of an act of grace
breaking through any legal principle, neither was it tantamount to an
acknowledgement of an injustice done to the other persons concerned; it
simply was an act undertaken from the point of view of expediency, each
case being decided on its own merits.

Such principles in handling elements which fail to fit into a
totalitarian political rule are by no means specifically National
Socialist; they also dominate the policy of the victor countries toward
the conquered German population. Anyone who does not obey the newly
arising democratic order in Germany, even anyone of whom an essential
opposition to democracy can be expected because he was grounded in
National Socialism before, is now interned. Whereas—according to
Document R-129 of the Prosecution—21,000 people were in concentration
camps at the beginning of the war in Nazi Germany, more than 300,000
National Socialists and militarists are held in internment camps in the
U.S. Zone alone, according to figures published by the occupation
powers.

A recently published decree of the Länderrat in the American occupation
zone confirms the fact that such acts of political purging are not legal
but political acts. This decree removes from the authority of the
administration of justice and transfers to the authority of the general
administration of the State all workers’ camps in which are interned
Nazis who have been sentenced to forced labor on account of their Party
membership; and this decree is issued because these camps are foreign to
the administration of justice.

Those were the only considerations which influenced the Defendant Göring
when he created concentration camps in 1933 and issued laws concerning
the Secret State Police. These were intended to be, as he conceived
them, a means of cleansing and strengthening the young community of the
people. He did not aim at a definite annihilation of political enemies
but, after a certain period of education, interceded generously for
their release and discharged, at Christmas 1933, about 5,000 and in
September 1934 about 2,000 prisoners.

He vigorously counteracted inevitable abuses and errors which he openly
admitted in the book he published in 1934, intended for the British
public, _The Building of a Nation_. For example, he permitted the
Communist leader Thälmann personally to report to him about his
complaints in the concentration camp and took care to have them
remedied. He dissolved the so-called “wild” camps of Stettin and
Breslau, punished the Gauleiter of Pomerania who had organized this camp
without his knowledge and against his will, and had those responsible
for these “wild” concentration camps brought to trial for their
infringements of the regulations.

This attitude of the Defendant Göring denotes that he never intended the
actual physical annihilation of the prisoners. If the Prosecution
establishes that this was all in execution of a conspiracy which aimed
at committing Crimes against Humanity, such an interpretation has no
bearing on the actual political life during the years in question. Such
a conspiracy did not exist, nor was it the intention of the defendant to
commit crimes against the principles of humanity, nor did he commit any
such crimes. As one of the political trustees of the German Government,
he felt himself bound to safeguard it against dangerous disturbers of
the peace and thereby to guarantee the future of the National Socialist
way of life. Far from looking upon such measures as criminal, he
considered them, on the contrary, to be the inevitable means of
consolidating the political order as a basis of all law.

In 1936 the leadership of the Police, and therefore the management of
the concentration camps, passed from the defendant to the Reichsführer
SS; Heinrich Himmler. The defendant cannot be held responsible for the
subsequent development of the concentration camps nor for the fact that
they became, especially after the outbreak of the war, more and more
gruesome places of torture and death and led—partly intentionally,
partly on account of the chaotic war conditions—to the death of
countless people and finally, in the last days before the breakdown of
Germany, turned into one vast graveyard.

Certainly he knew that there still were concentration camps, also that
the number of inmates had risen because of war tension and that they
contained foreigners because of the expansion of the war machine over
all of Europe; but the terrible happenings which have been disclosed in
this Trial were unknown to him. He knew nothing of the inhuman
experiments which were being carried out on inmates in misinterpretation
of true scientific methods. The testimony of the witness Field Marshal
Milch has shown that the Luftwaffe was not interested in these
experiments and that the defendant personally did not learn anything
specific at all about this matter.

By no means did the establishment of concentration camps as such have
anything to do with the later extermination of Jews, which apparently
originated in Heydrich’s and Himmler’s brains and was kept secret in a
masterly manner until it was disclosed after the collapse as the horror
of Auschwitz and Maidanek.

This brings me to the Jewish question. The Defendant Göring has
explained in detail his views on the Jewish question during his
interrogation as witness; furthermore, he has shown in all detail the
reasons which influenced the National Socialist Party and, after the
seizure of power, the State, to take a hostile attitude toward the Jews.

The defendant is reproached for having promulgated the Nuremberg Laws in
1935, which were intended to keep the race pure, and for having, in his
capacity as Delegate for the Four Year Plan, issued decrees during the
years 1938 and 1939 which had as their aim the exclusion of Jews from
economic life. Furthermore he is blamed for a number of other laws which
meant a one-sided and serious intervention into the legal sphere of
Jews.

The legal reason for this reproach is obscure. For this deals with a
purely domestic problem, namely, the regulation of the legal status of
German subjects; according to internationally recognized legal opinion
at that time, the German Reich as a sovereign state was free to settle
such a matter. Even if these encroachments were harsh and the
limitations of citizenship rights extremely severe, they nevertheless in
no way represent an offense against humanity.

Legal provisions which limit a certain race or a certain circle of
citizens in their legal position have been made by other states without
offense being taken at such measures and without other states
considering themselves bound to intervene. Reich Marshal Göring always
rejected any illegal or violent action against Jews. This is clearly
shown by his attitude toward the action against Jews during the night of
9 to 10 November 1938, instigated by Goebbels, of which he was informed
only after the deed had been done and which he condemned most severely.
In this respect he raised serious objections with Goebbels and Hitler.
On this matter, the precise statements of the witnesses Bodenschatz and
Körner are available. The testimony of Dr. Uiberreither shows how
greatly Göring disapproved of this action. According to the former, the
defendant summoned all Gauleiter to Berlin several weeks after this
incident and in an address sharply censured this violent action, which
was not in keeping with the dignity of the nation and which caused
serious damage to German prestige abroad. That the defendant was no race
fanatic became generally known by his expression, “I decide who is a
Jew.” It has been established sufficiently that he aided many Jews.

About a biological extermination of the Jews he learned only at the end
of the war. He never would have approved such a measure and would have
opposed it with all his might. For he had too much political insight not
to recognize the tremendous and at the same time senseless dangers which
would perforce result for the German people from such a brutal and
horrible act of extermination. Göring had already made it clear in the
above-mentioned speech to the Gauleiter that he did not wish to fall
foul of the world public and world opinion because of the treatment of
the Jews. It is therefore out of the question that Göring should have
approved of such an undertaking or participated therein in any manner,
although it is natural that it should be put to the defendant that he
must have been informed about such horrible measures as the second man
in the State.

Furthermore it is no wonder that the statements of the defendant that he
knew nothing of these atrocities should meet with a certain amount of
distrust. Despite such doubts, however, the defendant insists that no
information about such acts ever reached him.

This ignorance of the defendant, which can be completely understood only
by one familiar with German conditions, may be explained from the
fact—and this is the sole solution of the riddle—that Himmler, as was
also emphasized by General Jodl during his interrogation, knew truly
masterfully how to keep his actions secret, to obliterate all traces of
his atrocities, and to deceive the surrounding world and even his and
Hitler’s closer entourage. In this connection I also refer to the
testimony of the witness Hoess, who confirms Himmler’s instruction
concerning absolute secrecy toward everyone.

The question may come up here: Did not a legal obligation exist for the
defendant to make investigations about this matter and to get reliable
information as to the true whereabouts of supposedly evacuated Jews and
as to their fate? And what legal consequence results if he negligently
refrained from investigating and by such negligence violated his legal
obligation to act, incumbent on him by virtue of his position? The
decision of this extremely complicated question of law and fact may be
considered a moot question, because Göring, even as the second man in
the State, did not have the power to prevent such measures if they were
carried out by Himmler and were ordered, or at any rate approved, by
Hitler.

Mr. President, yesterday I already stated that I still wished to deal
with the Katyn case; and I intend to do so now, before I go on with my
conclusion. I am sorry I was not able to get any translations because
the testimony was only given a few days ago. However, this matter is not
very long. The interpreters have a copy. I shall begin with this report
now.

A detailed opinion has still to be given on the Katyn case, in which the
taking of evidence was concluded only a few days back. The Russian
Prosecution based their indictment on the findings of an investigation
which is set down in Document USSR-54. The following conclusion is drawn
from the entire evidential material as presented:

(1) Polish prisoners of war, who were in three camps west of Smolensk,
were still there in these three camps when the Germans came into
Smolensk, up to and including September 1941.

(2) In the Katyn forest German occupation troops undertook the mass
shootings of the prisoners of war from the aforesaid camps in the autumn
of 1941.

(3) The mass shooting of the Polish prisoners of war in the Katyn woods
was carried out by the German military authorities who had camouflaged
themselves under the code name “Staff of Construction Battalion 537” at
whose head was Lieutenant Colonel Ahrens, together with his
collaborators First Lieutenant Rex and Lieutenant Hodt.

The question is, did the Prosecution prove this accusation? This
question must be answered in the negative. No confirmation of guilt can
be found from the contents of this document. The accusation is made
against a definite military unit and names specific officers. The time
mentioned for the perpetration of this deed is September of 1941. The
Katyn forest is given as the scene of the crime. In view of the scanty
facts, which considerably restricted the accusation, it was merely the
task of the Defense to prove that this assertion would not bear
examination.

First of all, let us consider the persons involved. Colonel Ahrens, who
is obviously the Lieutenant Colonel Ahrens mentioned, is eliminated as
the perpetrator because this deed is said to have been committed in
September 1941, while Ahrens did not take command of Regiment 537 until
the end of November 1941. He arrived only at that time at Katyn and had
never before been in the eastern theater of war. Before Ahrens, Colonel
Bedenck was in command of the regiment and he joined the regimental
staff in August 1941. Before Bedenck, First Lieutenant Hodt took
lodgings in the little Dnieper castle in July 1941, immediately after
the capture of Smolensk. He came with an advance unit of the 537th
Regiment and remained there until the arrival of the regimental staff,
to which he was not yet attached at that time. He was transferred to the
regimental staff only in September 1941, and from that time on he lived
permanently in the little castle.

Special facts which would incriminate Hodt or Bedenck cannot be derived
from the document which has been submitted, and such facts have not been
presented here. Therefore, it is not proved that Bedenck and Hodt could
be considered as perpetrators.

The following circumstances contradict the theory that Unit 537 or any
other military unit had participated in this act. The Polish prisoners
allegedly fell into the hands of the Germans in the three camps west of
Smolensk. Thereby they would have become German prisoners of war. The
fact that they had been captured would have had to have been reported to
Army Group Center. Such a report was not made, as testified by the
witness Eichborn. Considering the tremendous number of prisoners, it is
quite out of the question that anyone could inadvertently have failed to
make a report of that nature. Apart from that, the capture of 11,000
Polish officers could under no circumstances have been concealed from
the Army Group. As results from the testimony of General Oberhäuser, the
Army Group never had any knowledge of this.

From the statements of the two witnesses, Eichborn and Oberhäuser, it
can be concluded that at the time of the capture of Smolensk by the
Germans there could not have been any Polish officers present in these
camps. Moreover, no eye witnesses who saw the officers after that date
were interrogated by the Russian commission. The railroad employee who
was interrogated on this subject knows nothing from his own observation.

Now, allegedly these 11,000 prisoners were taken from the camps to
Katyn. The transport of so many Polish prisoners could not have been
concealed from the Russian population even if the transport had been
carried out most unobtrusively and secretly, nor could shootings on such
a large scale have taken place without the Russian population taking
notice of them.

Even though this little wood was blocked off, at a distance of about 200
meters there was a public highway open to traffic, and this highway was
used daily and to a great extent by the Russian civilian population.
Anything that took place in the little wood of Katyn could be seen from
this highway.

In the direct vicinity of the Dnieper castle there were isolated
homesteads which remained occupied by the owners during the whole time
of the German occupation, and there was constant contact with the
regimental staff. There are no reliable statements and testimony dealing
with either transport or the observation of shootings. The Germans would
hardly have chosen the site on which the graves were found for such a
mass execution. Owing to its situation between the main road and the
regimental quarters, this site was quite unsuitable for such a misdeed.
As I have already stated, there was lively traffic not only on the
nearby road, but also in the direct vicinity of the graves which were
near a small road connecting the regimental headquarters with the main
road. The executions could also have been observed by soldiers who had
nothing to do with it. Even the unit selected to carry out the deed
would have been very unsuitable. A technical unit, such as a signal
corps unit, is the least suitable for such a task.

The witnesses Eichborn and Oberhäuser did not move into these quarters
near the site of the deed until 20 September 1941, and they can only
testify as to what they themselves observed from that date on. But from
the end of July there was an advance unit near the castle and from
August, a regimental staff. It is, however, quite out of the question
that in this span of time or perhaps 6 weeks this act could have been
perpetrated. The few people who were available were so overburdened with
military tasks that in this short time it would have been quite
impossible for them not only to kill 11,000 prisoners, but also to
remove the bodies.

According to the statement of the Prosecution, Russian prisoners of war
allegedly helped to remove the bodies. That has not been proved. None of
the Russian population had ever seen such prisoners. In no case could
all traces of the deed be effaced so quickly and the scene so speedily
cleared that the witnesses Oberhäuser and Eichborn on their frequent
trips to the Dnieper castle would not have noticed some suspicious
signs.

The testimony of the witness who was heard here is not sufficient. He
merely heard a story of such shootings from a certain Menschagin who
cannot be found now. This witness did not make any personal
observations. He himself did not see any Poles. He was told by students
that they had seen Poles but they did not know the number of Poles or
where they were being kept. Testimony which is so scanty in every
respect is worthless, and the testimony given by the two doctors heard
as witnesses is not adequate for use in the sense of the Indictment.

Within the scope of the evidence admitted by the Tribunal, it would not
have been possible to clarify completely all the medical questions which
were decisive for the experts in the facts you have established.
Therefore, the Defense has also refrained from calling a medical expert
to exonerate the defendant.

There is one thing, however, which must not be overlooked in this
connection. The expert opinion obtained by the German Government was
given by 12 members of a commission of leading representatives of legal
medicine from European universities, while the expert opinion referred
to by the Prosecution was deposed by a group of Russian experts only.
The first expert opinion should be given preference since it was
compiled by experts who were completely nonpolitical.

Now, the Witness Professor Markov in his examination went back on the
opinion contained in the report of 30 April 1943. He claims that already
at that time, due to his findings upon making an autopsy on the bodies,
he failed to agree with the report that the shooting took place in the
months of March and April 1940. However, this testimony must be met with
considerable misgivings. The witness could give no plausible explanation
why, in view of his opinion, he did not lodge an immediate protest
against the version of the report of 30 April 1943 or refuse his
signature, nor why, at least, he later...

THE PRESIDENT: [_Interposing._] Dr. Stahmer, you realize, of course,
that you have not offered in evidence the report of this German
commission. You expressly refrained, as I understand it, from offering
the report of the German commission. And you...

DR. STAHMER: Mr. President, that is a mistake. I did not refrain from
doing so. I was not permitted to submit the _White Book_, but I was
permitted to submit the report of 30 April 1943. However, I could not
submit it immediately, for it was contained in the _White Book_ and I
was to have copies made. These copies were made and submitted. I used
some of the passages from the protocol, with the express approval of the
High Tribunal.

THE PRESIDENT: I know you did, and of course if you want to offer it
there will be no objection to your offering it; but certainly I
understood that you were only offering in evidence the parts which you
read to the witness. That, I think, was put to you at the time you were
cross-examining the witnesses on behalf of the Prosecution.

That is what I understood, but if you say that your interpretation was
different and that you want to offer the whole of the report, then the
matter will be considered by the Tribunal, if the Tribunal has not
already considered it.

Are you saying that the Tribunal has already allowed the whole of that
report to be offered in evidence?

DR. STAHMER: Mr. President, unfortunately the book...

THE PRESIDENT: Dr. Stahmer, what you are desiring to offer in evidence
is the conclusion of the report or the protocol or whatever it is
called, is that right? That, I take it, is not a very long document, is
it?

DR. STAHMER: No, Mr. President. May I explain again. I am sorry but I
have not received the transcript of the session. Therefore, I do not
know just what is contained in this protocol; but I do recall—and one
of my colleagues confirmed this to me just now—that at the time I was
permitted to submit the entire so-called report of the commission, and I
quoted certain passages not only from the conclusion but from the whole
report, and with the permission of the High Tribunal I proposed to
submit the entire report later.

THE PRESIDENT: Well, I do not know what you mean by the whole report or
what you mean by the protocol.

DR. STAHMER: Mr. President, may I describe it once more.

This was a rather comprehensive protocol which described the findings of
the investigations. It contained the entire facts of the case and it
concluded with a joint expert opinion. It is composed, as I have stated,
of facts and reasons. It contains, first of all, a very comprehensive
statement in which the facts as they appeared to the experts are
described individually. For instance, that they interrogated the Russian
population on the spot, checked over the site of the graves, held a post
mortem—all of these things were presented by me from the record with
the permission of the High Tribunal.

Mr. President, may I be permitted to make another remark to clarify
these matters? I remember this incident quite particularly because you,
Mr. President, first mentioned it and asked whether I had another copy
of this protocol. I answered, “No, I have only the _White Book_.” Then
that was submitted to the witness, whereupon I suggested that the other
witness be called so that in the meantime I could have a copy made of
this protocol. Then you, Mr. President, thought it had better not be so
but that I should take the book and then submit a copy afterward.

THE PRESIDENT: Well, the Tribunal will look at the record to see exactly
what happened.

DR. STAHMER: As I said, I did not see the transcript myself. If it was
not taken down like that, then the record is not complete. However, I do
remember quite clearly that that is what took place.

THE PRESIDENT: We will continue then.

DR. STAHMER: The statement of the witness is subject to considerable
doubt. The witness could give no plausible explanation as to why, in
view of his attitude concerning the form of the protocol of 30 April
1943, he did not lodge an immediate protest and refuse to sign it or why
he did not at a later date at least acquaint the other experts who
participated with his true scientific conviction.

Through this testimony the German experts’ opinion cannot lose its
weight and become weakened, especially since the other 11 experts
obviously endorsed the statements set forth in this report.

Considering this state of affairs it will not be necessary to set forth
the individual reasons which speak for the correctness of the statements
contained in the German _White Book_ of 30 April 1943.

The time given by the Russian experts for the shooting, that is, the
autumn of 1941, is determined arbitrarily; and it cannot be true in any
case for the corpses wore winter clothing, as the witness Markov noticed
on the corpse upon which he performed an autopsy. The fact that
ammunition for pistols of German make was found in the graves does not
permit the conclusion that this shooting was necessarily carried out by
Germans. In the German _White Book_ it has already been pointed out that
the German factory which produced this ammunition delivered a great deal
to other countries, especially to the East.

In conclusion, it can be said that the task of this proceeding is solely
to determine whether the 11,000 Polish officers were shot after the
capture of Smolensk by the Germans, in other words, that this deed could
have been committed by Germans. The Prosecution have not succeeded in
proving this fact and therefore this accusation will have to be struck
from the Indictment.

Mr. President, I come now to my closing sentences, my conclusion. I
imagine it will take me roughly a little more than 10 minutes and think
it would be best to give this conclusion in unbroken continuity. Either
I will have to speak until after one o’clock; or, if I may be permitted
to make a suggestion, the Tribunal might recess now.

Shall I continue now?

THE PRESIDENT: If you can finish in 10 minutes we will go on until you
finish, Dr. Stahmer.

DR. STAHMER: I will not quite have finished in 10 minutes, and I should
like to point out particularly that I would not like to have to
interrupt my concluding remarks.

THE PRESIDENT: Perhaps if it would be more convenient to you—we will do
whichever you like; we will recess now, if you like. It is a very hot
day and we will recess now if you prefer.

DR. STAHMER: I would prefer to have the recess now. I do feel the heat a
little today, Mr. President.

THE PRESIDENT: Very well.

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

DR. STAHMER: I come now to the summary.

In reviewing the personality and life of the Defendant Göring, the
following points must be considered for the appreciation of his actions:

Provided at home with a good educational background and training in
character, he was moulded decisively as a young officer and combat
airman during the first World War, in which he proved his outstanding
worth, receiving the highest award for bravery, the decoration _Pour le
Mérite_. He experienced the collapse of the German war effort as a
consequence of, as he saw it, German treachery from within.

After the rule of the Kaiser had been overthrown, the German people
wanted to give themselves a new constitution on a democratic basis and
then hoped to be able to work their way up again by industry and
perseverance. In this, the confidence in the far-sightedness of the
victor powers of that time, and especially in the 14 points of Wilson,
played a great part. But when the Treaty of Versailles utterly
frustrated these hopes, the Weimar democracy fell into a serious crisis
from which it was not to recover. This, together with the subsequent
world economic crisis, formed the undeniable prerequisite for the fact
that Hitler was able to seize power.

First, the “fight against Versailles” made his rise as a Party leader
possible. Göring, as a witness, described how he agreed with Hitler at
their first meeting that nothing could be achieved by written protests.

The powerlessness of the German democracy had by then become apparent to
the entire world. Göring like Hitler was convinced that Germany
inevitably must become a victim of Bolshevism unless it was possible to
muster against it sufficient defensive strength by the re-establishment
of German self-confidence at home. That Germany was also forced to take
a firm stand against the Versailles powers was a matter of course. In
this Hitler unquestioningly seized upon the fact that Germany belonged
to the West—culturally, economically, and also politically. He believed
that the Bolshevist danger, which in the first place was directed
against Germany, would ultimately also threaten the Western countries.
Therefore he was of the opinion that he would be able gradually to gain
their recognition and support if he took up the ideological struggle
against the East.

From this basic attitude alone is it possible to explain his entire
policy until the actual collapse. One may rightly condemn it today as
having been a failure from the outset, but one cannot ignore the fact
that initially certain things in the development clearly seemed to
justify it. And this explains how Hitler succeeded in making an
ever-increasing part of the Germans his followers.

Göring firmly believed that salvation could come only through Hitler. He
recognized in him the born national leader who knew how to influence and
to guide the masses and whose hypnotic willpower shrank before no
obstacle. He realized that under a democratic constitution only such a
man of demoniacal demagogic talent was able to prevail. And therefore he
joined him.

Because Göring was a true and honest German, inspired only by love for
the fatherland, he did not even think of using Hitler only as a tool for
his own advancement. On the contrary, he took it upon himself from the
beginning to recognize in him the man who alone decides, in other words,
the Führer, and to be satisfied with a subordinate role. Therefore the
famous Air Force captain and holder of the order _Pour le Mérite_ did
not hesitate to swear the oath of allegiance to the then still unknown
Hitler, an oath which was to hold good for the rest of his life and
actually did so. It is tragic that a struggle such as that led by Göring
and Hitler could be so completely misunderstood as to be considered from
the very outset as a conspiracy for the purpose of committing crimes.

His aim was at first directed towards freeing Germany from the shackles
of the Treaty of Versailles. It is true that the Weimar Government had
made repeated attempts to be released from the most onerous obligations
of this treaty. However, Germany was not successful in her endeavors for
a revision. No progress was made by negotiating. Did not international
law appear to be only an instrument in the hands of the victors of
Versailles to keep Germany down permanently? Was it not still true in
the world that might came before right and that the Germans would
achieve something only if they had the courage to shake their fists?

Such considerations appear absolutely understandable from the situation
of that time. To construe from them a proof for the conspiracy alleged
by the Prosecution would mean a complete misunderstanding of the facts.
Actually, the development after 1933 seemed at first to prove Hitler
completely right. He easily achieved with his methods much more than—if
given voluntarily—would have kept the Weimar Government in power.

From the willingness of the foreign countries not only to conclude
treaties with Hitler—such as the Naval Agreement of 1935 and the Munich
Pact of September 1938—but also to participate to the end in the Party
rallies, the German people could only conclude that Hitler had chosen
the correct road for reaching international understanding. This
impression and this judgment were absolutely correct until the fall of
1938. Had Hitler afterwards observed loyally the Munich Agreement, then
he would probably have stayed the arguments for the “stop” policy which
was initiated against him. Not only would peace have been maintained,
but Hitler could also have harvested the fruits of his domestic and
foreign policy pursued until then and recognized by all powers.

Basically, the argument today centers only on the question of whether
the developments since then and their catastrophic consequences should
be charged solely to him or to others. All Germans who followed Hitler
at any time and in any way are accused. For the prosecutors
maintain—above all those who put no trust in him from the outset and
who denied the legitimacy of his government from the beginning—“It was
to be foreseen that he would end as he did!” Therefore, everyone who
supported him at any time and in any way also shares in the guilt.

To this accusation it must be objected that retrospectively it invests
the sad results with an inevitability which would destroy all belief not
only in freedom, but also in the wisdom of man. Of course Hitler himself
did not desire the end as it came. He often enough announced at the
beginning that he was not out for the laurels of war but that he would
like to devote the rest of his life to peaceful constructive work. From
a truly objective point of view, one can reproach him only for not
having limited his aims when he could no longer believe in their
achievement by peaceful and humane means.

If by such means only those are to be understood which renounce force of
any kind, then there would have been no need for him to go his own way
and seek a new solution. A certain play with force, as long as it did
not get out of hand, will, therefore, have to be conceded to him. Where
it got out of hand can only be determined, for lack of other proof, by
the results which he actually caused with his policy. He certainly did
not foresee and intend the bad results. However, it must be considered
his fault that he did not accept the lesson of his failures but allowed
himself to be goaded to still greater extremes. But how much of this
guilt can and may be charged also to his followers?

Whoever did not reject Hitler’s methods, and thereby him personally,
from the very beginning as illegitimate, found it difficult to recognize
where the political aims set by Hitler ceased to provide justified
reasons for his measures, and where beyond that the policy became a
crime. The dividing line in this respect was from the standpoint of the
purely German legal conception probably considerably different from that
of other nations or even the world. For the latter, for example, were
hardly interested in the maintenance of the Weimar constitution and the
basic rights granted by it to the individual German. Its violation,
therefore, up to the second World War has never caused other states to
intervene with the German Government. On the other hand, once the war
had broken out, the Germans were forced to put German interests above
their sympathy for members of other, especially enemy, states. Each
believed himself to be doing enough if he took care in his sphere to see
that unnecessary harshness was avoided. To revolt against orders from
the highest German authority would not only have been completely
senseless and hopeless, but, until shortly before the bitter end, it
would also have been a violation of German legality and thereby a
punishable offense. Reproaches for failure to revolt can, therefore, be
made only if the breach of formal legality, without consideration of the
immediate practical effect and only for the sake of the principle—which
is the attitude of a revolutionary—could be defined as a legal
obligation.

The consequences of such a conception are so far from the point that
they cannot be considered seriously at all, because hitherto existing
international law was primarily based on the principle of unlimited
sovereignty of the states. No country has been willing to submit vital
and decisive questions to the judgment of others, no matter to how great
a majority or to however independent a tribunal. And now every
individual citizen of such a sovereign state was to have had not only
the right but even the duty toward the other nations or humanity to
rebel against the legal system of his own country because it violated
the rights of man and humanity? Such an imposition, made retroactively,
pronounces its own sentence. It would place the autonomy of the
individual above state sovereignty. Thereby the power of the individual
person would not only be immeasurably overestimated, but this would also
necessarily lead to the breaking of the last ties of traditional order,
to anarchy.

To this way of thinking Göring virtually represents the exact opposite
pole. Just as others went to war in order to fight against war as such,
he became a revolutionary in order to restore honor to the concept of
loyalty. Thus, having once cast his lot with the Führer, he stood by him
when he had already lost the latter’s confidence, in fact, even after he
had been sentenced to death by Hitler. He remained loyal until today, in
spite of everything, by excusing Hitler again and again. To many this
may appear incomprehensible, and many may see in it a sign more of
weakness than of strength. But this loyalty reveals his whole
personality. Göring has occasionally been described as a late
Renaissance type; and there is something in that. Although of high
intelligence, he allowed himself to be guided in his actions less by
reason than by the dictates of his warm heart.

Such a man expresses himself of necessity in a way that is primarily
subjective. He does not look upon the people surrounding him and upon
others impassionately as factors to be reckoned with; but he feels,
above all, what effect they have on him and how they challenge his
approval or disapproval so that he finally makes his personal reaction
to them the basis for his over-all judgment.

But still, as can be seen from the statements of Generaloberstabsrichter
Dr. Lehmann, he always endeavored to be just and to lend an ear to
sensible arguments. He always kept himself free from doctrinal
prejudices. As a soldier, he always endeavored to do the right thing in
each case. His decisions on points of law as well as his social
interest, which General Bodenschatz testified to among other things,
show his earnest moral sense of responsibility. His attitude toward all
criminal acts directed against the honor of women are proof of his
chivalry. But in all this he is not guided by a dogma but by his
spontaneous common sense, _ergo_ not by intellect, but by life. From
actual life he derives his ideas and the values which determine his
actions.

Therefore the Führer and the oath of loyalty he had taken to him meant
everything to him and were the substance of his life. Ambassador
Henderson had judged Göring correctly, when he wrote about him:

    “He was the perfect servant of his master, and I have never seen
    greater loyalty and devotion than he maintains toward Hitler. He
    was recognized as the second power in the country, and always
    gave me to understand that he was Hitler’s natural successor as
    leader. Men in secondary places often tend to emphasize their
    own importance. In all the open discussions in which I engaged
    with Göring, he never spoke of himself or the great part which
    he had played in the Nazi revolution; Hitler had done
    everything, all confidence was confidence in Hitler, every
    decision was Hitler’s and he himself was nothing.”

This judgment still applies today. But his loyalty became his disaster.
For him a world had gone to rack and ruin. He certainly recognized many
a mistake of the past, but he did not show the repentance which many
would have liked to see in him. He thereby remains loyal to himself as
well. And this completes the picture of his character.

In a period still threatened by chaos, in which men are again searching
for a firm foundation for life, the positive value of such loyalty
should not be ignored.

THE PRESIDENT: Dr. Seidl, I understand that you have not had your speech
translated into any of the languages. Is that so?

DR. SEIDL: Mr. President, I told the General Secretary yesterday the
reasons which made it impossible to have the speech translated. However,
I have given the Language Division the text in German; and I was told
that the German text would be a big help in carrying out the translation
as quickly and as accurately as possible.

THE PRESIDENT: Well, the Tribunal has already pointed out to you, many
days ago, that it is very inconvenient to them not to have a copy of the
speech before them. If you propose to make a speech, they will do the
best they can to appreciate it. It makes it very much more difficult and
very much more inconvenient not to have the speech translated.

DR. SEIDL: I shall see to it that the translation is made as quickly as
possible for the case of the Defendant Frank.

THE PRESIDENT: Very well; go on.

DR. SEIDL: Mr. President, Gentlemen of the Tribunal, when in 1918 the
German Army, after more than 4 years of heroic struggle, laid down arms,
this was done in confidence of the assurances repeatedly given by
President Wilson in 1918. In his speech before Congress on 8 January
1918, the President of the United States of America, in 14 points, had
demanded among other things...

THE PRESIDENT: [_Interposing._] Dr. Seidl, the Tribunal has already
intimated, as you must know, that the question of the 14 points and the
question of the justice of the Treaty of Versailles is irrelevant. They
do not propose to listen to it. You have been told that before, and many
documents have been rejected which dealt with this subject.

DR. SEIDL: Mr. President, I do not intend to comment on the question of
whether the Versailles Treaty is just or not. The point is this: The
Prosecution have submitted the Versailles Treaty in evidence. They made
the Versailles Treaty the main point of the Indictment especially as
concerns Count One of the Indictment.

My investigation aims at the following: First, was the Versailles Treaty
formed legally? Second...

THE PRESIDENT: I spoke only of the injustice of the Versailles Treaty.
But it is even more irrelevant to question whether the Versailles Treaty
is a legal document or not. We do not propose to listen to your
contending that the Versailles Treaty is not a legal document. There are
plenty of matters which are of material moment for your client which you
have to discuss before us, but that is not one of them.

DR. SEIDL: Mr. President, I cannot leave the Tribunal ignorant of the
fact that the Versailles Treaty and its consequences, especially the
causal relationship with the seizure of power by National Socialism,
form a considerable part of my speech and it will be...

THE PRESIDENT: Dr. Seidl, I have told you that the Tribunal will not
listen to your contending either that the Versailles Treaty was not a
legal document or that it was in any way unjust. On those topics we do
not propose to hear you.

DR. SEIDL: Then I must construe the attitude of the Tribunal to mean
that I will not be permitted to speak of the consequences of the
Versailles Treaty, and particularly about the connection which these
consequences had with the rise of the National Socialist Party and with
the seizure of power by Adolf Hitler and the co-defendants.

THE PRESIDENT: Look. The Versailles Treaty is, of course, a historical
fact; and the Tribunal cannot prevent you from referring to it as a
historical fact. But as to its justice or as to its being a legal
treaty, the treaty which Germany signed, you will not be heard.

As you have not laid your speech before us, we do not know what you are
going to say. But we will not listen to that sort of argument.

DR. SEIDL: Then I shall begin on Page 6 of the German manuscript, with
the second paragraph.

Thus the struggle for the revision of the peace “Dictate” of Versailles
began at the moment when it was signed. In the program of the National
Socialist Labor Party of Adolf Hitler, this struggle against the
Versailles peace “Dictate” and for its revision assumed a place far
surpassing all other demands and considerations. It was the leading
thought by which the whole inner-political activity of the Party was
guided and which, after the seizure of power, was to form the basis for
all foreign political considerations and decisions.

One of the first fellow-fighters of Adolf Hitler was the Defendant
Rudolf Hess. Like Hitler, he was also a front-line soldier in the first
World War. As a volunteer he joined at the outbreak of the war, and he
had risen to the rank of infantry lieutenant when he was wounded in
Romania. Incapacitated for the infantry through this wound, he enlisted
in the Air Corps.

After the armistice, he fought with various volunteer corps. But in
1919, after the conclusion of the Versailles Peace Treaty, he had to
recognize that the victors did not really desire a peace based on
justice and a corresponding adjustment of interests. As could be
expected, the terms of the Peace Treaty of Versailles, and especially
the burden of the reparations on the already seriously affected German
economy, had to have...

THE PRESIDENT: Dr. Seidl, it may be difficult for you to cut out of your
speech the various references to the topics which I have referred to;
but you must kindly try to do it. For if you continue to refer to the
topics to which I have referred, namely the justice or the legality of
the Treaty of Versailles, the Tribunal will have to stop your speech and
go on with some of the other defendants.

DR. SEIDL: Mr. President, the subject I was just dealing with was not a
question of justice or legality but a question of the consequences and
referred to the investigation of the causal connection. If the
Prosecution, in weeks of presenting evidence, showed how the rise of the
National Socialist Party came about and how the numbers of its mandates
increased...

THE PRESIDENT: Dr. Seidl, those are all facts which the Prosecution is
perfectly entitled to prove. What you are now referring to is an
argument that certain clauses of the Versailles Treaty were unjust. And
that is an argument which the Tribunal is not prepared to listen to. It
is not a statement of fact; it is an argument.

DR. SEIDL: Of course, it is an argument...

THE PRESIDENT: I have said that it is an argument we are not going to
listen to. If you do not understand what I mean, you will have to stop
continuing your speech. Do you understand that?

DR. SEIDL: Page 8, then, if you please.

When in 1925 the Party was founded anew, Rudolf Hess was once more one
of the first...

It is impossible, Mr. President, to continue my speech, because all the
following statements are concerned with the question: What did the
Defendant Hess do up to the seizure of power? And I must say and have
said that the mainspring of his activity within the Party and the German
people consisted in achieving a revision of the Versailles Treaty and
its most unbearable terms. This is the very question of the whole
National Socialist movement up to 1933.

THE PRESIDENT: If you confine yourself to statements of fact as to what
the Defendant Hess did, there will be no objection to it at all. But as
I said, if you make arguments that the Treaty of Versailles is illegal
or unjust, the Tribunal will not hear you.

DR. SEIDL: I shall continue, and I ask you, Mr. President, since I do
not know the exact limits which I may not transgress, to interrupt me if
I should again touch upon a subject which in the opinion of the Tribunal
refers to the justice of the Versailles Treaty and...

THE PRESIDENT: Dr. Seidl, you know perfectly well the limits which have
been laid down by the Tribunal many weeks ago as to the question of the
justice or the injustice of the Treaty of Versailles. There has been a
great number of documents rejected on the ground that they dealt with
the justice or the injustice of the Treaty of Versailles, and you must
have known that perfectly well.

DR. SEIDL: Then I ask the Tribunal to tell me whether I am permitted to
make statements to the effect that the economic deterioration,
especially the great unemployment, resulted from the reparations clauses
of the Versailles Treaty and the refusal of the victorious powers of
1919 to change this reparations policy.

THE PRESIDENT: You may certainly state what the condition of Germany
was. That is a matter of fact.

DR. SEIDL: Then I shall again begin on Page 8.

When in 1925 the Party was founded anew...

THE PRESIDENT: Dr. Seidl, the Tribunal is perfectly familiar with this
type of argument; I mean, we are not going to lose sight of the
argument. We know all about the argument; we do not want to hear it. We
think it is entirely irrelevant.

Can’t you go on to other passages of your speech which are important for
the Defendant Hess? As I have said, there are a great many matters of
which evidence has been given by the Prosecution and which have been
answered by the Defense; and upon those matters we desire to hear you.

DR. SEIDL: I shall then begin on Page 10, with the second paragraph.

If, therefore, the National Socialist Party achieved a great victory in
the Reichstag elections of 14 September 1930, and entered the new
Reichstag with no less than 107 delegates, then that is at least due to
the economic crisis of the time, to the great unemployment and so
directly to the reparations stipulations, contrary to all economic
reason, of the Versailles Treaty and the refusal of the victorious
powers, in spite of urgent warnings, to agree to a revision. It is
true...

THE PRESIDENT: [_Interposing._] Dr. Seidl, you know that is again an
argumentative statement, that the Treaty of Versailles was unfair and
that the victorious powers had failed to recognize the essential justice
of Germany’s case or something of that sort. If you can’t adjust your
speech to what I have laid down, we shall have to ask you to recast the
whole speech.

DR. SEIDL: Then I shall turn to Page 11, second paragraph. No, I shall
turn to Page 12.

When the German people, in compliance with the Peace Treaty of
Versailles, had disarmed, it had a right to expect that the victorious
powers would also...

THE PRESIDENT: [_Interposing._] One moment, Dr. Seidl, as you don’t
appear to be capable of recasting your speech as you go along to accord
to the Tribunal’s ruling, the Tribunal will not hear you further at this
stage. It will go on with the next defendant’s case. You will then have
the opportunity of recasting your speech, and you will submit your
speech for translation before it is presented, and I would explain that
this is the reason why the Tribunal does not propose to hear you upon
these matters. They are irrelevant to the issues that the Tribunal has
to try. If they were in any way relevant to the charges which are made
against the defendants in the Indictment, the Tribunal would of course
hear them; but they are, in the considered opinion of the Tribunal, in
no way relevant to the charges upon which the defendants are being tried
and therefore the Tribunal do not propose to hear them. The justice of
the Treaty of Versailles has nothing to do with whether or not the war
which was made by Germany was aggressive. It has nothing to do with the
war crimes with which the defendants are charged, and therefore, it is
irrelevant and for that reason we don’t propose to hear it. Now, as I
say, as you are unable apparently to recast your speech, you will be
given an opportunity of recasting it in private; and you will then
submit it for translation and you can then deliver it. And now we will
go on with the case against the Defendant Ribbentrop. Dr. Horn, you are
ready to go on, are you?

DR. HORN: Mr. President, I have just heard that the translations are
being brought up. Perhaps I may wait until the translation gets here?

THE PRESIDENT: I think you might go on. We can hear what you say and
take it down.

DR. HORN: Mr. President, Gentlemen of the Tribunal: “All great upheavals
in the history of the world, and especially of modern Europe, have at
the same time been wars and revolutions.”[A]

-----

[A] Halévy

-----

We are in the midst of such an upheaval. It is by no means concluded as
yet. To select isolated events in order to submit them to a judicial
appraisal is not only almost impossible but entails the danger of a
premature judgment. Let us make no mistake about it; we are not judging
here a local crisis the causes of which are limited to a certain part of
Europe. We have to form a judgment about a catastrophe which touches
upon the deepest roots of our civilization.

The Prosecution has laid down strict measures in judging certain
national and international events. Germany is greatly interested in the
development of law and justice if its general application leads to an
improvement of international morals. This Tribunal has the high task not
only of passing judgment on certain defendants, disclosing the causes of
the present catastrophe, but at the same time of creating norms which
are expected to be adopted universally. No law should be created that is
only applied to the weak. Otherwise we would foster the danger that
again all national efforts would be directed to develop more fully the
power of resistance and thereby make war still more merciless than the
one on which judgment is to be rendered here.

In taking these thoughts as a basis I beg to present to the Tribunal the
case which I represent.

Herr Von Ribbentrop is being considered among the conspirators as the
man mainly responsible for the foreign political and diplomatic side of
an alleged conspiracy, which is supposed to have had as its goal the
preparation and execution of aggressive wars. It is my primary task to
determine, on the basis of the results of the evidence, when a case
constitutes an attack in the meaning of international law and in which
cases aggressive wars were waged.

The concept “aggressive war” is not exhausted in the proposed formal
judicial definition by the American and British prosecutors but has,
above all, a material basis.

Only the knowledge of these premises permits the adoption of an attitude
which can serve as a basis for the decision of the Tribunal. I am,
therefore, deferring the discussion of the problematic aspects of
aggression and aggressive wars until, after having described the German
foreign policy and Herr Von Ribbentrop’s role therein, I shall have
submitted to the Tribunal the evidence for consideration.

As the Tribunal intends to consider the matter in the light of criminal
law, I shall especially examine to what extent Herr Von Ribbentrop
hindered or furthered the foreign political decisions during the time of
his official activity.

Herr Von Ribbentrop’s first step into international politics and his
first move in the international game of power was successfully
accomplished when he concluded the Naval Agreement between Germany and
England in 1935. The circumstances under which this treaty came into
existence are as significant for the political problems of those years
as they are characteristic for judging the personality of Von Ribbentrop
and his further political development. This treaty—as is known in
informed quarters—came about under exclusion of the official German
diplomacy. The then German Ambassador in London, Von Hoesch, and the
Wilhelmstrasse were very skeptical toward this project. Neither Hoesch
nor the Wilhelmstrasse believed that England was inclined toward
concluding such a treaty, which contradicted the terms of Part V of the
Versailles Treaty as well as her previous attitude as displayed at the
different disarmament conferences. Furthermore they did not believe that
such an agreement could materialize a few weeks after the Council of the
League of Nations had declared the restoration of German military
sovereignty to be a breach of German obligations; and England, France,
and Italy had met at Stresa in order to counteract this German step. And
much less did they believe that a successful conclusion of such a
far-reaching treaty, with its fundamental significance, could be
achieved by an outsider like Herr Von Ribbentrop.

The consequences resulting from the conclusion of this treaty were as
significant as they were far-reaching. Herr Von Ribbentrop, who came
from the Party, rose greatly in Hitler’s esteem. In turn, however, the
relationship between Herr Von Ribbentrop and the conservative diplomatic
corps became more and more difficult. This nominal ambassador who had
managed to acquire Hitler’s confidence was distrusted because his
activity could not be controlled by the Foreign Office.

From the conclusion of the Naval Agreement onwards, Hitler began to see
in Herr Von Ribbentrop the man who could help him in the fulfillment of
his pet wish—and also, we may say, of that of the German people—to
achieve a general political alliance with England. The inclination to
realize these intentions had practical as well as ideal motives.

The practical motives can be condensed into the short statement that it
is the misfortune of our nation and of all Europe that Germany and
England were never able to understand each other, in spite of earnest
attempts on the part of both countries during the last 50 years. The
ideal motives were grounded in Hitler’s indisputable preference for many
approved internal institutions of the British Empire.

Politically the Naval Agreement represented the first important break
with the Versailles policy as sanctioned by England with the final
approval by France. And thus the first actual and practical armament
limitations were put in effect after many years of fruitless
negotiations.

Simultaneously with all these factors a generally favorable political
atmosphere was created. The Naval Agreement and its effects may also
have been the reason for Hitler to appoint Herr Von Ribbentrop
Ambassador to the Court of St. James the following year, after the death
of Hoesch.

However surprisingly fast Herr Von Ribbentrop succeeded in concluding
the Naval Agreement, in offering a general alliance to England he had
not the slightest success. Was it the fault of Herr Von Ribbentrop’s
diplomacy or the basic difference of interests?

Whoever is familiar with Anglo-Saxon psychology knows that it is not
advisable to pester these people at once with proposals and requests.
Germans, at first sight, may recognize many common traits in the
British, but upon closer observation profound differences will be noted.
Both nations have their roots in a different soil. Their spiritual
heritages have different sources. The deeper the Germans and the British
penetrate, the greater will appear the difference in their faith and
their mentality. The deeper the British and the French penetrate into
one another’s nature, the more they will find in common with each other.
These harmonies between the British and the French were still further
enhanced in the past 50 years through the affiliation of their political
interests.

In the course of modern history England has always had the desire to
ally herself with a continental military power and has sought and found
the fulfillment of this interest, depending on the direction of British
aims, sometimes in Vienna, sometimes in Berlin, and from the beginning
of the 20th century in Paris. England’s interests, at the time of Herr
Von Ribbentrop’s activity as Ambassador, did not demand a departure from
this line. This was supported by the basic British attitude that Great
Britain did not wish to commit herself on the continent. From the Thames
the complications which lay dormant beneath the surface on the continent
were clearly seen. Added to this was the fact that authoritative men in
the Foreign Office were still thinking too much in terms of a policy
conducted at the turn of the 19th and the beginning of the 20th century.
This thinking was still, now as then, directed towards an alignment with
France.

The voices of those who advocated closer contact with Germany were
negligible, their political weight succumbed to that of the opposition.
To this were added the difficulties which resulted for Herr Von
Ribbentrop from Germany’s participation in the Non-Intervention
Committee, which at that time met in London in order to keep the powers
out of the Spanish civil war.

The Prosecution raised the question of how Herr Von Ribbentrop regarded
German-British relations on his departure from London as Ambassador. The
answer to this will best be furnished by Document TC-75, which contains
the views of Herr Von Ribbentrop on the then prevailing foreign
political situation of Germany and on the future possibilities of
German-British relations.

In this, Herr Von Ribbentrop presupposes that Germany does not want to
bind herself to the _status quo_ in Central Europe. It is his conviction
that the implementation of such foreign political aims will necessarily
force Germany and England “into different camps.” For this reason he
advises the formation of alliances, loose at first, with powers having
similar interests (Italy and Japan). Through this policy he hopes to
engage England at the danger points of her Empire and still to keep the
door open for an understanding with Germany.

Herr Von Ribbentrop then deals with the question of Austria and the
Sudetenland. According to his conviction at that time, England will not
in either of these questions give her consent to a modification of the
_status quo_, although she might be forced through the power of
circumstances to tolerate a solution of these questions.

A change through collision with vital French interests of the _status
quo_ in the East will, however, always cause England to become an
opponent of Germany in a conflict of such nature. Herr Von Ribbentrop
held this conviction not only in 1938 when this document was penned;
but, contrary to the assertions of the Prosecution, warned Hitler of
this danger even before and at the outbreak of the second World War.

From this document it follows also that Herr Von Ribbentrop did not, as
was asserted here, depict the British to Hitler as a degenerate nation,
for he says in this document quite clearly that England would become a
hard and keen opponent to the pursuance of German interests in the
Mediterranean.

This conception of Germany’s foreign political situation at that time,
as expressed in Document TC-75, evidently agreed with Hitler’s ideas
inasmuch as in the course of the Fritsch crisis Herr Von Ribbentrop took
over the Foreign Ministry in place of the resigning Herr Von Neurath.

According to Herr Von Ribbentrop’s testimony, Hitler asked him upon
entering his office to assist him in solving four problems. These were
the Austrian, the Sudeten German, the Memel, and the Danzig and Corridor
questions. As shown by the evidence this was not a secret understanding
which was arrived at by the two statesmen.

The Party program contains, in Point 3, the demand for revision of the
peace treaties of 1919. In a number of speeches Hitler repeatedly
pointed out the necessity of fulfilling these German demands. Reich
Marshal Göring testified here that in November 1937 he explained to Lord
Halifax the necessity of solving these questions and said that they were
an integral part of German foreign politics. He also clearly expounded
these goals to the French Minister Bonnet. Herr Von Ribbentrop therefore
put his energy into the attainment of goals which were known and which
beyond that resulted, of necessity, from the dynamic situation at that
time prevailing in Central Europe due to the strengthening of the Reich.

How much or how little freedom of action Herr Von Ribbentrop had as a
minister in the solution of these questions, I shall explain in
connection with my statement on the participation in the conspiracy of
which the defendant is accused. Only this much may be said here: That,
as was proven by evidence, with the dismissal of Herr Von Neurath, the
decisive authority in the field of foreign politics was also
concentrated in Hitler’s hands. Herr von Neurath was the last Foreign
Minister who under the regime of National Socialism at first retained a
decisive influence on foreign politics as a Foreign Minister, which
influence, however, due to the increasing power of the regime, he had to
surrender more and more to Hitler’s aspirations towards totality.

In the selection of Herr Von Ribbentrop, a man of Hitler’s own liking
became Foreign Minister. Outside of all formalities of state law and
jurisdiction, every government without a doubt has a strong component in
the purely personal relations among the rulers themselves. Seen from
this point of view, it is necessary for the understanding of certain
actions and of recent history to look into the relations between Hitler
and Herr Von Ribbentrop.

Herr Von Ribbentrop, a well-to-do man of nationalist leanings, saw that
Hitler and his Party strove for goals which corresponded with his own
ideas and feelings. Herr Von Ribbentrop’s ideas about the foreign
countries visited by him aroused Hitler’s interest. Hitler’s personality
and political convictions developed in Herr Von Ribbentrop a form of
loyalty, the final explanation of which one can perhaps find in the
effects of the power of suggestion and hypnosis.

Let us not be oblivious to the fact that not only Herr Von Ribbentrop
but also countless people within and beyond Germany’s borders fell
victims to this power. What in this courtroom is to be considered by the
standards of law, after all finds its final explanation only from the
point of view of mass suggestion and psychology, to say nothing of the
pathological forms of these phenomena. This task may be left to the
sciences concerned.

As an attorney—and only as such do I have to evaluate the results of
the evidence—I shall, with the permission of the Tribunal, after
clarifying this aspect, present the role of Herr Von Ribbentrop within
the alleged conspiracy for the plotting of wars and acts of aggression
in violation of treaties.

Herr Von Ribbentrop had not been Foreign Minister for 10 days when he
was called upon by Hitler to participate in the conference with the
Austrian Chancellor and his Foreign Minister on 12 and 13 February 1938
in Berchtesgaden. Evidence presented in court has confirmed the fact
that questions involving Austria especially were exclusively Hitler’s
own concern. The then Ambassador Von Papen reported directly to the head
of the State. Herr Von Ribbentrop had no influence whatever upon the
activities of the Party in Austria nor in the Southeastern territory. My
client alleges to have been informed only very rarely and not officially
about its activities there.

The former Austrian Foreign Minister, Dr. Guido Schmidt, testified here
that Herr Von Ribbentrop did not participate in the decisive conference
between Hitler and Schuschnigg. During the other conferences he did not
conduct himself in the Hitlerian “style” and created the impression on
the witness of not being informed, which in a certain measure was due to
his late activity in London and his only recent appointment as Foreign
Minister. From this inoffensive conduct of Herr Von Ribbentrop the
Prosecution have drawn the conclusion that it was a maneuver agreed upon
between Hitler and himself. They insist upon seeing in Herr Von
Ribbentrop’s conduct a typical sign of what they characterize as “double
talk.” Must not the indisputable dates and facts with regard to Herr Von
Ribbentrop, the impression of the witness Schmidt resulting therefrom,
my portrayal of Ribbentrop’s position as Minister, his lack of
information on the long-planned preparations with respect to Norway and
Denmark, and other undeniably proven facts give cause to raise the
question whether Herr Von Ribbentrop did not participate in decisions of
foreign policy to a far lesser degree than is contended by the
Prosecution?

In the question of the Anschluss, at any rate, he did not, as the
evidence proves conclusively, play a decisive part. To him Austria was a
country, mutilated by the Treaty of St. Germain, which on sound
principles could hardly subsist and which once shared a common destiny
in history with a greater Germany. The National Socialists were not the
first to awaken Austria to the thought of a union with Germany. This
thought had ripened in the German element of the Hapsburg monarchy since
the revolution of 1848, which aimed at a democratic Greater Germany.
After the downfall of the monarchy the Social Democrats continued to
fight for it for ideological and material reasons. In fact, they saw in
the Weimar state their spiritual offspring. The economic distress
resulting from the destruction of the Danube area as an economic entity
nurtured the thought of a union with the Reich, which was in a better
economic position.

In this fertile soil the National Socialists were able to cultivate the
Anschluss idea. In any event the prerequisites for an Anschluss with
Germany were created when support for Austria by Italy ceased, due to
the rapprochement of the latter toward Germany on account of the
Abyssinian conflict. The further reasons that contributed to the
Anschluss and its justification will be fully presented by my colleague
Dr. Steinbauer.

Reich Marshal Göring testified here that the Anschluss in its close
form, as laid down in the Law of 13 March 1938,
Wiedervereinigungsgesetz, which was signed also by Herr Von Ribbentrop,
did not originally even correspond with Hitler’s intentions, but was put
through by him.

As a further violation of treaties with regard to the Austrian question
the Prosecution quote the violation of Article 80 of the Treaty of
Versailles and the corresponding article of the Treaty of St. Germain,
as well as the violation of the treaty between Austria and Germany of 11
July 1936.

THE PRESIDENT: The translation came through to me, I think, as though
you had said, “...the union did not even correspond with the intentions
of Hitler, but was put through”—it should have been “by Göring
himself.”

DR. HORN: Yes, I forgot that.

THE PRESIDENT: Go on.

DR. HORN: In justification of these violations one could point out that
the articles concerned constituted a violation of the right of
self-determination, on which the peace treaties were based. The outcome
of the vote after the annexation at any rate clearly confirms the
Austrian attitude of that time.

The _clausula rebus sic stantibus_ could be considered as a further
justification for the violation. One could refer to the statement of
Under Secretary of State Butler in the House of Commons who, in reply to
a question after the Anschluss, stated that England had given no special
guarantee for the independence of Austria as laid down in the Treaty of
St. Germain.

These legal evaluations would hardly do justice to the facts. Statute
law always lags behind the ideal of justice. That does not only apply to
domestic law but also to international law. Events show that if treaties
fail to make provision for changes, time and events pass them by in
order to rebuild them upon a new base. The question of whether the
participation in such events can be legally evaluated must definitely be
disputed. I shall refer later on to the general aspects of the adaption
of the law to the strength of bare facts.

An Englishman once asserted the following: “We have to face the stubborn
fact that Central Europe is populated by an almost solid block of 80
million people who are highly gifted, highly organized, and who are
conscious of these achievements in the highest degree. The majority of
these people have the strong and evidently incredible desire to be
united in one state.”

The Anschluss of Austria and the nationalist theories of National
Socialism had set in motion this artificially split-up block created by
the peace treaties of 1919. No attentive observer could fail to notice
the effect of the Anschluss upon the neighboring states.

It is not my intention to take up the time of the Tribunal with the
particulars of the subsequent efforts by the various groups of Germans
in the neighboring states for incorporation into the Reich. The facts
which have now become history are only too well known. My task here is
to examine whether these events are the results of a premeditated plan
of one person or a group of persons, or whether not rather a long and
artificially suppressed force was instrumental in accomplishing the
objectives which were assigned to Herr Von Ribbentrop by Hitler at the
time of his appointment.

The Anschluss of Austria was the signal for the Sudeten German Party to
force the issue of an Anschluss now on their part too.

Herr Von Ribbentrop has been accused by the Prosecution of having, in
his capacity as Foreign Minister, engaged in creating difficulties in
collaboration with the Sudeten German Henlein. They further accuse him
of having induced the Sudeten German Party to increase their demands
step by step rather than enter the Czechoslovak Government and of thus
having prevented a solution of the whole problem without making it
appear that the German Government was setting the pace.

Document 3060-PS submitted by the Prosecution shows just the contrary.
It is true that Herr Von Ribbentrop knew that the Anschluss efforts of
the Sudeten Germans were encouraged by the Party. But he had no
influence on this Party policy nor any thorough knowledge of it. Due to
the difficulties which had arisen with the Czech Government on account
of the separation efforts of the Sudeten Germans and their partly
uncontrollable policy, Herr Von Ribbentrop considered it necessary to
see to it that the realization of the Sudeten German aims was carried
out within the limits of a responsible policy.

THE PRESIDENT: Dr. Horn, wouldn’t that be a convenient time to break
off?

                        [_A recess was taken._]

DR. HORN: The Munich Agreement brought a temporary calm in the situation
with reference to foreign policy. The situation was again complicated
only by Hitler’s invitation to Hacha to come to Berlin and by the events
resulting from this visit. This step with its far-reaching importance
came as a complete surprise to Herr Von Ribbentrop. Reich Marshal Göring
has testified that after the Slovakian question had been settled Hitler
had, in spite of all warnings, decided upon setting up the Protectorate
of Bohemia and Moravia. On the basis of the available material it will
be difficult to ascertain the final reasons for Hitler’s step. According
to the testimony of the Defendant Göring they sprang from Hitler’s
constant fear that through connections of the Czech officer corps with
Russia another complication of the situation in the southeastern area
might develop. This assumption and the resulting strategical and
historical reasons may have induced Hitler to take this step of 13 March
1939, which came as a surprise to Herr Von Ribbentrop, too.

This step, which is only understandable by Hitler’s tendency towards
surprise decisions, completely changed the German situation as to
foreign policy. Herr Von Ribbentrop had warned Hitler at that time of
the reaction by the Western Powers, and especially by England, which had
to be expected as a result of this step.

And the consequences became immediately apparent in the Danzig and
Corridor question which had been under discussion since October 1938.
Whereas up to that time the Poles, by reason of the German policy since
1934 and due to the return of the Olsa territory to Poland, had not
refused discussions about this problem, a reaction to the setting up of
the Protectorate became apparent immediately at the end of March.
England regarded the establishing of the Protectorate as a violation of
the Munich Agreement and began consultations with a number of countries.
At the same time Minister Beck, instead of coming to Berlin again, went
to London and returned from there with the assurance that England would
resist any change of the _status quo_ in the East. This declaration was
also made in the House of Commons after previous consultation with the
French Government.

On 26 March 1939 the Polish Ambassador Lipski called at the
Wilhelmstrasse and stated to Herr Von Ribbentrop that any continuation
of the revision policy toward Poland, especially as far as a return of
Danzig to the Reich was concerned, would mean war.

Thereby the Polish question had become a European question. Herr Von
Ribbentrop told the Polish Ambassador at that time that Germany could
not acquiesce to this decision. Only the reincorporation of Danzig and
an extraterritorial corridor to East Prussia could bring a final
solution.

I have submitted to the Tribunal, in the form of documentary evidence, a
review of the Polish crisis which then developed. I can therefore assume
that the actual course of events is known, including the incorporation
of the Memelland which returned to the Reich through an agreement with
Lithuania.

In order not to take up the time of the Tribunal unnecessarily, I shall
confine myself to stating those facts which are apt to clarify the role
of Herr Von Ribbentrop.

The Prosecution accuses Herr Von Ribbentrop of mollifying Poland by
pretending friendly feelings toward her during the Sudeten crisis and
the setting up of the Protectorate of Bohemia and Moravia. May I, in
refutation of this assertion, point out that the relations between
Germany and Poland since the agreement of 1934 were good and even
friendly and that this attitude became, of course, even more favorable
through the fact that Poland was indebted to German foreign policy for
the acquisition of the Olsa territory.

She had, therefore, every reason to entertain friendly feelings toward
Germany without it being necessary to be deceived by Herr Von
Ribbentrop’s behavior. As the evidence has shown, Herr Von Ribbentrop
continued this friendly policy towards Poland even after the dissolution
of Czechoslovakia, since there was no reason to deviate from this
attitude.

The Prosecution further accuses Herr Von Ribbentrop of having known that
Hitler as early as the spring of 1939 was determined to wage war against
Poland and that Danzig served only as pretext for this conflict. They
deduce this from Documents USA-27 and USA-30. These are Hitler’s
well-known speeches of 23 May and 22 August 1939. First of all I wish to
point out that Herr Von Ribbentrop was not present at these conferences
intended only for the military leaders.

A number of key documents have been discussed in detail here. I only
wish to name the best known, such as the Hossbach Document, the two
Schmundt Files, and the afore-mentioned speeches. Quite a number of
statements about these documents have been submitted in evidence. People
who knew Hitler well stated that they had become accustomed to his
extravagant ideas expounded in sudden speeches, in which he often
repeated himself, and that they did not take them seriously in view of
his singularity.

It is possible to counter these documents with quite a number of
speeches in which Hitler has asserted the contrary. Here, conversely, it
might be pointed out that Hitler pursued some definite purpose with his
utterances. That may be quite true. But it is just as true that even the
few key documents which were submitted as proof of aggressive war
contain so many contradictions, with regard to the aggressive intentions
deduced from them, that at best a critic judging retrospectively could
recognize such intentions. Besides, the contents of these documents, in
accordance with the strict regulations for secrecy, became known only to
those who took part in the conferences. This might explain why Herr Von
Ribbentrop learned about them only here in the courtroom.

The guiding principles as to foreign policy which Hitler laid down for
him at that time covered merely the reincorporation of Danzig and the
establishment of an extraterritorial road through the Corridor, in order
to open a direct land route to East Prussia.

As the Tribunal will remember, Hitler had told Herr Von Ribbentrop
already at the time of his appointment as Foreign Minister that it was
desirable to achieve these aims. This demand was just as much
historically justified as some solution in the case of earlier
incorporations of areas inhabited by Germans, which had become
inevitable.

The statute of the purely German city of Danzig, which was created by
the Treaty of Versailles in the course of the establishment of a Polish
state, had always been the cause of friction between Germany and Poland.
Poland had achieved this solution at Versailles through the argument
that it needed an outlet to the sea. For the same reason the Corridor
was established against all ethnological needs. Clemenceau in his
memorandum already referred to this artificial creation as a source of
danger, especially due to the fact that the peoples living in this area
had been separated through long years of bitter enmity. It was not
difficult to foresee that as a result of this fact the League of Nations
and the International Court at The Hague were constantly going to be
occupied with complaints about Polish violations of the agreement on
minorities. The same cause gave rise to the large-scale confiscation of
up to a million hectares of German estates and the expulsion of far more
than a million Germans in the course of 20 years. Not without reason did
Lord d’Abernon speak of the Danzig-Corridor problem as the “powder
magazine of Europe.” When finally a solution of this question was sought
under recognition of the Polish claim to the preservation of an outlet
to the sea, such an endeavor appeared both sensible and historically
justified.

The evidence has produced nothing to support the claim that this
question served merely as a pretext, which Herr Von Ribbentrop could not
but have known. It has produced no proof that Herr Von Ribbentrop was
acquainted with those of Hitler’s aims which went far beyond these
demands. Nor has it been proved that Herr Von Ribbentrop, as has been
asserted by the Prosecution, before 1 September 1939, did all he
possibly could to prevent peace with Poland, although he knew that a war
with Poland would draw Great Britain and France into the conflict. The
Prosecution base this statement on Document TC-73. This is a report by
the Polish Ambassador to Berlin, Lipski, to his Foreign Minister. The
document contains nothing whatsoever to substantiate this assertion.

Moreover, I do not believe that, according to the result of the
evidence, Lipski can be valued as a particularly reliable witness. May I
recall that it was Lipski who, during the decisive stage of the
negotiations before the outbreak of the war, remarked that he had not
the least cause to be interested in notes or propositions from the
German side and that he knew the situation in Germany quite well after a
period of 5½ years as Ambassador. He was convinced that in case of war
riots would break out in Germany and that the Polish Army would march
victoriously into Berlin.

According to the testimony of the witness Dahlerus it was none other
than Lipski who, during the decisive discussion at the Polish Embassy,
created the impression among the Swedes that Poland was sabotaging every
possibility for negotiations.

Further results of the evidence also speak against the above allegations
presented by the Prosecution, as for instance the fact that Herr Von
Ribbentrop, after he had learned that the Polish-English guarantee pact
had been signed, intervened with Hitler to cancel the order for the
Armed Forces to march because a conflict with Poland would also, in his
opinion, have drawn in the Western Powers. This opinion coincides with
the conclusions to which Herr Von Ribbentrop had come in his review of
the European situation and laid down in Document TC-75, which has
already been mentioned.

Minister Schmidt has testified here that it was Herr Von Ribbentrop who,
on 25 August 1939, after the Hitler-Henderson meeting, sent him to Sir
Nevile Henderson with the verbal communiqué, presented as TC-72/69, in
which the contents of Hitler’s proposals were summarized. At the same
time Herr Von Ribbentrop adjured Henderson to submit Hitler’s proposals
personally to the British Government for favorable consideration.
According to the _British Blue Book_, Sir Nevile Henderson could not
refrain from calling these and subsequent proposals exceptionally
reasonable and sincere. They were not the customary Hitler proposals,
but pure “League of Nations” proposals.

No one studying the negotiations of the subsequent fateful days can deny
that everything was done on the German side at least to get negotiations
under way on a workable basis. The opposite side did not let it come to
that, because they were determined to take action this time. The good
services of England ended with the breaking-off of all mediation without
having been able to bring Poland to the conference table.

Herr Von Ribbentrop has been blamed for having practically defeated the
purpose of the last decisive discussion with the British Ambassador,
Henderson, by having read the German proposals to Poland so fast,
contrary to all diplomatic custom and international courtesy, that Sir
Nevile Henderson could not understand them and, hence, could not pass
them on. The interpreter, Minister Schmidt, was present at this decisive
discussion. He has testified here under oath that this statement is not
true. One may consider Hitler’s order to acquaint Sir Nevile Henderson
only with the substance of the memorandum as unwise. The fact is that
not only did Herr Von Ribbentrop read the entire contents at a normal
speed to the British Ambassador; but he also, by having the interpreter
present, made it possible for Sir Nevile Henderson to become familiar
with the entire contents and, moreover, to have explanations given on
it. Besides, upon the initiative of Reich Marshal Göring, it was
transmitted to the British Embassy during the same night by telephone to
the Counsellor of the Embassy, Mr. Forbes. Thus the British Government
should have been able to render the good services offered for opening
negotiations based on positive proposals.

By reason of these facts here deposed, one must rightly doubt the truth
of the allegation that the defendant had done everything to prevent
peace with Poland.

At the beginning of my defense speech I stressed that legal
considerations concerning aggressive war are not possible without
knowledge of the circumstances leading to an armed conflict. Before I
proceed to the legal aspects of the conflict with Poland, may I make
some additional statements concerning the causes that led to the war.

The period between two World Wars is characterized by the conflicting
reactions of those powers which were satisfied and those which were
dissatisfied. It seems to be an inevitable law that after great war
repercussions, the victorious states tend as far as possible toward the
re-establishment of the prewar status and prewar mentality, whereas the
vanquished are forced to find a way out of the consequences of their
defeat by new means and methods. Thus after the Napoleonic wars there
came about the Holy Alliance which under Metternich’s leadership, using
legitimacy as an authorization, tried to ignore the effects of the
French Revolution.

What the Holy Alliance did not achieve, the League of Nations equally
failed to achieve.

Created in an atmosphere of fervent belief in human progress, it was
quickly transformed into a tool of the satisfied states. Every effort to
strengthen the League of Nations meant a new bulwark for the maintenance
of the _status quo_. Under cover of the elegant diction of juridical
formalities power politics continued. Besides, the obsession by the idea
of _sécurité_ soon deprived the newly-created body of any breath of
freshness and life.

In this fashion, naturally, a solution of the problems created by the
end of the first World War could never be found. In international
relations a coalition of interests of the conservative powers content
with the _status quo_ and of the revolutionary powers trying to do away
with it, became increasingly apparent. It could only be a question of
time until under those circumstances the political initiative would pass
to the dissatisfied powers. The formation of this front depended
exclusively on the force of the revolutionary spirit which was
crystallizing in opposition to the political self-complacency and
hankering after the past. In this fertile soil grew the doctrines of
National Socialism, Fascism, and Bolshevism, obscure in many parts of
their programs, elastic and incoherent in others. Their power of
attraction was based not so much on their programs but on the fact that
they admittedly offered something new and that they did not exhort their
followers to worship a political ideal that had failed in the past.

The economic crisis of the postwar period, the controversies about
reparations and the occupation of the Ruhr, the inability of democratic
governments to obtain anything for their distressed peoples from the
other democracies, unavoidably led to a test of the doctrines which had
not yet been tried out. The practical results of this revolution, as we
experienced them in Germany after 1933, could, aside from the social
program, consist only in abolishing the peace settlement of 1919, which
constitutes a classical example of failure to understand the
revolutionary character of a world crisis. For this revolution these
tasks were not legal questions but doctrines, exactly as it had long
become a doctrine of the satisfied states to maintain the _status quo_
at all costs, even at the price of a new world war.

Only he who does not shut his eyes before these facts can judge the
political crisis of the past decade.

Every revolution has but two possibilities; either it meets so little
resistance that eventually conservative tendencies develop and an
amalgamation with the old order is formed, or the antagonistic forces
are so strong that finally the revolution breaks up through
overstraining its own means and methods.

National Socialism went the second way, which began without bloodshed
and partly with a remarkable leaning upon tradition. But this method,
too, could not escape the inherent laws of history. The aims were too
high for one generation, the revolutionary essence too strong. The
initial successes were startling, but they also resulted in lack of
criticism as to the methods and aims. The process of uniting all larger
German groups in the Central European space would most probably have
succeeded, if at the end—I am referring to the setting up of the
Protectorate of Bohemia and Moravia and the pursuit of the
Danzig-Corridor question—the revolutionary tempo and methods had not
been overstrained by reason of previous successes. No person capable of
sober judgment will dispute the need for a solution of the
Danzig-Corridor question, delicate as it was.

The Prosecution may assert that in reality Danzig was but a pretext, but
seen from the state of affairs in 1939 this can hardly be proved. But it
is certain that the opposite side was concerned about other things than
the maintenance of the _status quo_ in the East. National Socialism, and
with it, in its newly gained strength, the German Reich, had become such
a danger in the eyes of the others that after Prague it was determined
to make any further German advance a “test case,” wherever it should
happen.

I have already said that the revolutionary protest in Central Europe was
chiefly due to economic causes brought about by Versailles where a peace
treaty was imposed on Germany of which it was well-known that its
economic provisions could not be carried out by the vanquished.

THE PRESIDENT: Dr. Horn, the Tribunal thinks that sentence, at any rate,
is objectionable on the ground that I have already stated.

DR. HORN: Mr. President, I did not mean to emphasize how the Versailles
Treaty came about; I only wanted to stress certain necessary
consequences which are generally known facts. But I have completed this
part and have nothing further to say with reference to it.

THE PRESIDENT: Go on, Dr. Horn.

DR. HORN: Much has been said here about the slogan Lebensraum. I am
convinced that this word would never have become a political program, if
after the first World War Germany had been given the possibility of
linking up with the world markets, instead of being strangled
economically. By systematically cutting her off from all raw material
bases of the world—all this for reasons of _sécurité_—the tendency
towards autarchy, the inevitable way out from the barring from the world
markets was fostered; and, at the same time, with the progressively
deteriorating economic situation, the cry for Lebensraum could find
receptive ears.

Thus, Stalin is right when he says:

    “It would be erroneous to believe that the second World War came
    about accidentally or as a result from mistakes of one or the
    other of the statesmen, even though such mistakes were made
    without doubt. Actually the war came about as an inevitable
    result of the development of international economic and
    political forces based on modern monopolistic capitalism.”[B]

-----

[B] Speech by Stalin on the eve of the Soviet elections in February
1946.

-----

Professor Jahrreiss has already fully explained, in his basic arguments
concerning the legal and the actual significance of the Kellogg Pact,
that the meaning given to this project for the prevention of war by the
Prosecution cannot be recognized by the Defense.[C]

-----

[C] Mr. Justice Jackson is trying in this connection to invoke Article 4
of the Weimar Constitution of 1919. According to this, the universally
recognized rules of international law are regarded as binding components
of German Reich law. Owing to the differing legal appreciation of the
Kellogg Pact on the part of the Great Powers the interpretation advanced
by the Prosecution cannot be looked upon as German Reich law.

Cf. _Reich Supreme Court Decisions in Litigation Procedures_, Vol. 103,
Page 276.

Anschütz: _The Constitution of the German Reich_ (_Die Verfassung des
Deutschen Reiches_); 10th ed., Page 58 et sequentes.

-----

Even though war has been previously declared an international crime,
especially at the 8th League of Nations Assembly of 1927, it became
quite clear in preliminary conversations, as has been proved by
documents already submitted to the Tribunal, that this declaration was
not meant to make war a crime in the legal sense but that it was an
expression of the wish to prevent future international catastrophes of
the scale of the first World War. Moreover, neither the United States
nor Russia participated in the League of Nations resolution of 1927.

All further plans for outlawing war during the period between the first
and second World Wars remained mere drafts, as the British Prosecutor
had to acknowledge in his significant argumentation, because practical
politics could not follow these moral postulates.

All these experiments—and they are by no means few—clearly show that
the problem of finding a definition lies in the difficulty of condensing
a political process, dependent upon a host of components, into a legal
concept which will cover all the varying cases occurring in practice.
The failure to formulate a definition which could be used in
international law has led to the fact that, instead of working out
general standards and measures applicable in each case, the designation
of the aggressor was left to the decision of an organ dominating all the
contending parties. In such a way, the question of defining the
aggressor became the question: “_Quis judicavit?_” that is, “Who shall
designate the aggressor?” From this decision follows a new difficulty,
namely, what is to be done against the aggressor?

Previous to the attempt of settling in a general way the concept of
aggression and the sanctions against the aggressor, political alliances
determined the obligations of the parties to wage war. In order to
improve this unsatisfactory and anarchic situation, the United States,
under Secretary of State Bryan...

THE PRESIDENT: [_Interposing._] Isn’t this really arguing the same
questions that Dr. Jahrreiss has already argued?

DR. HORN: Mr. President, I have tried to omit the matters set forth by
Professor Jahrreiss. Professor Jahrreiss confined his arguments chiefly
to the Kellogg Pact. I am only dealing with the questions pertaining to
the legal aspect of wars of aggression.

THE PRESIDENT: Yes, but the Tribunal only granted the right to have an
additional counsel deal with the general questions of law on the
understanding that the other counsel were not going to deal with the
same questions of law. Of course, you are not using the words of Dr.
Jahrreiss—I should not expect you to do that—but you are arguing the
very same topics.

DR. HORN: Mr. President, it had been agreed originally, as the professor
as an expert had stated, that every counsel is entitled to take a
different attitude toward the problem argued by him. Professor Jahrreiss
concentrated chiefly on the Kellogg Pact and its consequences. I
personally am turning my attention to aggressive war, and, as you, Mr.
President, emphasized...

THE PRESIDENT: Just a moment. What is involved, then, is that the
Tribunal is going to hear 20 arguments upon the general questions of
law; and surely it can scarcely have been thought by defendants’ counsel
that the Tribunal proposed to hear 20 arguments on the general questions
of law and also hear Dr. Jahrreiss on it. The only purpose of hearing
one counsel was to have the general questions of law dealt with by one
counsel alone, and that the others should not speak upon it.

DR. HORN: Mr. President, may I emphasize once more...

THE PRESIDENT: Just a moment. The Tribunal will adjourn.

                        [_A recess was taken._]

DR. RUDOLF DIX (Counsel for Defendant Schacht): My Lord, may I ask the
Tribunal to accept a short explanation to the matter which has just
taken up the attention of the Tribunal and which for most counsel is of
general and fundamental importance. I should like to remind you of the
fact that the suggestion and initiative to take up certain legal topics
and have them dealt with by Professor Jahrreiss came from the Defense
and that this suggestion was made for the sole reason of complying with
the Tribunal’s wish to expedite the proceedings. I must earnestly
request the Tribunal to protect us from letting this suggestion, made to
and granted by the Tribunal at the time, become our own pitfall in that
a resolution which has been made is interpreted too strictly. I do not
have the resolution before me and I do not intend to deal with it and
discuss it, but I should like to say this: Professor Jahrreiss did speak
and was to speak on but two topics which, it is true, were of a general
nature; that is, (a) the punishment of individuals for a war of
aggression, in other words, _nulla poena sine lege_, and (b) the legal
nature of the Führer decrees. Only these two problems were to be dealt
with by Dr. Jahrreiss and these were the two topics that he actually did
deal with. But besides that, these proceedings entail a series of legal
problems which are of a general nature and more or less affect each of
the defendants. I only recall to you the interpretation of the
conspiracy charges, the various questions dealing with international
law, the questions of hostages and forced labor, and the legal question
concerning distress at sea through naval warfare, and other general
questions. There are a host of general questions, and above all the
matter on which my colleague, Dr. Horn, was stopped, concerning the
question: “What is an aggressive war?” There exist fundamental
differences between a military war of aggression, a political war of
aggression, and a juridical war of aggression, _et cetera_, about which
Dr. Jahrreiss did not say a single word, nor was he supposed to do so.
And please—I trust you do not mind my saying so, but that is the way I
understood Dr. Horn—that is really the basis of his argument.

I do not propose to argue and to refer to a resolution; but I ask the
Tribunal not to put us in a most delicate situation, namely, that we, in
order to expedite the proceedings by having Professor Jahrreiss deal
with a number of legal questions, be put in a position for which we
cannot take responsibility, in that we are prevented from dealing with
certain questions which in our opinion are of decisive legal importance
to the defendants and about which Jahrreiss himself did not speak at
all.

Only a word or two more. I believe the Tribunal will agree with me that
one can have an entirely different opinion on the subject with which
Professor Jahrreiss has dealt. I do not have it; nor shall I contradict
Dr. Jahrreiss. But from a purely theoretical point of view that might be
possible. Should it happen, just because in such an important matter a
speaker has dealt with this question, although in a sense which possibly
one of the counsel considers entirely improper and harmful to his case,
that that counsel is forced to keep silent on such a matter? That cannot
have been the intention of the Tribunal. Well, all I wanted to say was
this: This speech by Jahrreiss served the purpose of expediting the
Trial. Well and good. But we ask—I think I may say “we”; I believe that
none of my colleagues is of a different opinion—we ask that it should
not be interpreted too formally; and if one of us for some good reason
says, “I have to discuss this, it is important for this or that reason,”
to give us that possibility wherever Jahrreiss has dealt with the
subject in a sense which we do not approve, and not to prevent the
discussion of some general legal question if it should be raised by any
of the counsel.

THE PRESIDENT: The Tribunal has been considering this matter and they
are fully aware, of course, of the difficulties which may possibly arise
if there were differences of opinion among the defendants’ counsel upon
questions which had been dealt with by Dr. Jahrreiss. They did
anticipate when they made the order which specifies that Dr. Jahrreiss
should speak on legal issues arising out of the Indictment and Charter
which are common to all the defendants—those are the words of the
order—that he would deal with all the issues which were common to all
the defendants, and in the absence of some difference of opinion, that
the other defendants would be prepared to adopt his argument; but the
Tribunal think that the questions of law may be to some extent quite
various and difficult and that the only rule which is possible for them
to lay down at this stage is that there must be no real repetition by
defendants’ counsel. The Tribunal apprehends that defendants’ counsel
will see the necessity for such a rule as that. It cannot be in the
interests of an expeditious trial that argument should be repeated over
and over again, and this Tribunal desires to point out to the
defendants’ counsel that such repetition upon general matters only tends
to distract the attention of the Tribunal from the real defenses of the
clients whom they represent, and therefore the Tribunal hopes that the
defendants’ counsel will try to co-operate in this matter and confine
such legal arguments as they think it right to present to the Tribunal
to arguments which had not been addressed to the Tribunal by counsel who
preceded them—either Dr. Jahrreiss or any other counsel. That is all
that I need to say, I think, at this stage; and as it is now 5 o’clock
the Tribunal will adjourn.

      [_The Tribunal adjourned until 8 July 1946 at 1000 hours._]




                   ONE HUNDRED AND SEVENTY-THIRD DAY
                           Monday, 8 July 1946


                           _Morning Session_

MARSHAL: May it please the Tribunal, Defendant Fritzsche is reported
absent.

DR. HORN: With the permission of the High Tribunal I shall continue with
my final presentation, beginning with Page 34. The English text page
number corresponds with the German text page number.

Previous to the attempt to settle, in a general way, the concept of
aggression and sanctions against aggressors, political alliances
determined the obligations of the parties to wage war. In order to
improve this unsatisfactory and anarchic situation, the United States,
under Secretary of State Bryan, took the initiative in a series of
separate treaties in order to reach an agreement for periods of respite,
which were meant to delay the outbreak of hostilities and to allow the
passions to cool down.

The Covenant of the League of Nations took up this point of view but
went one decisive step further by determining a procedure by which the
League organs should determine the permissibility or nonpermissibility
of war. The decision indicated whether war was permitted or not
according to the Covenant. The aim of this regulated procedure was to
hit the disturber of international order, who was not necessarily
identical with the aggressor. The state which went to war in accordance
with the decision of the League of Nations organs behaved in a lawful
way, even when it undertook preliminary hostilities and thereby was the
aggressor in the military sense.

It was therefore apparent that the distinction between aggressor and
attacked was not adequate enough to guarantee a just settlement of
international relations.

Although these Covenant regulations and the procedure based thereon
showed that the relation of lawful to unlawful, permitted to prohibited,
aggressor to attacked, was unsatisfactory, efforts were still made to
brand as an aggressor anyone who offended against international order.
As the essential decision miscarried owing to the difficulties just
mentioned, there was an attempt to make out of this legal concept, which
did not allow a concise definition, a political decision by those organs
of the League of Nations which were qualified for maintaining
international order. Such was the case in the draft of a mutual
assistance agreement elaborated in 1923 by order of the League of
Nations Assembly. The Geneva Protocol, which was meant to supplement the
Covenant inadequacies concerning the question of the settlement of
disputes, also transferred to the League of Nations Council the decision
of determining who had violated the agreement and was therefore the
aggressor.

All other attempts to outlaw war and settle conflicts, mentioned by the
British Chief Prosecutor, have remained drafts, excepting the Kellogg
Pact.

It can probably be put down to this fact that the idea of a legal
definition of the aggressor was once more taken up at the Disarmament
Conference. In this way the definition was established in the year 1933
by the committee for questions of security, presided over by the Greek,
Politis, of the general Disarmament Conference committee. Owing to the
failure of this conference, the definition was made the object of a
series of separate treaties at the London conferences in the same year.
The only great power participating was the Soviet Union, which had taken
the initiative to obtain the definition at the disarmament conference.
This definition has also been adopted by the United States Chief
Prosecutor, who has based thereon the Indictment before this Tribunal
for a Crime against Peace. This definition is no more than a proposal of
the Prosecution within the limits of the Charter, which does not give
further details about the concept of a war of aggression. It must be
emphasized that Mr. Justice Jackson cannot invoke in this matter any
universally acknowledged principle of international law.

The report of the 1933 commission did not become the object of a general
treaty, as projected, but was merely agreed upon between a number of
individual parties in agreements binding only those concerned. As a
matter of fact, the only agreements were those between the Soviet Union
and a number of states around her. No other great power accepted the
definition. In particular, Great Britain kept aloof, notwithstanding the
fact that the individual agreements mentioned were actually signed in
London. At least the participation of the great powers would have been
required for the constitution of a principle of international law of
such far-reaching importance for the reorganization of international
relations.

Quite apart from this legal consideration, the utterances of the British
and the American Chief Prosecutors show that, as far as facts are
concerned, the proposal is equally unsatisfactory. In the important
question of Point 4 of the definition, the British Prosecution differs
from the American. The old conflict of interests between _mare liberum_
and _mare clausum_ had led the Prosecution to the point that Sir Hartley
Shawcross did not mention the naval blockade of the coasts and ports of
a state as aggressive action.

The definition of 1933 may offer valuable characteristics for
establishing the aggressor, but one does not get around the fact that a
formal legal definition shows the impossibility of doing justice to all
actual political cases.

With the attempt to set down a new regulation for creating order in the
world in the Charter of the United Nations, one returned, having
obviously recognized this truth, to the idea of a decision by an
international organ without wanting to force its judgment into the
inconvenient form of a rigid definition. The Charter of Peace of San
Francisco says, in Chapter VII, Article 39:

    “The Security Council shall determine the existence of any
    threat to world peace and security or breach of the peace or act
    of aggression and shall make recommendations or decide what
    measures shall be taken to maintain or restore international
    peace and security.”

In the year 1939 there was neither a recognized definition of the term
aggressor nor an institution authorized to designate the aggressor.

The League of Nations as an instrument for the settlement of disputes
had completely failed. This was expressed outwardly already by the fact
that three great powers had left it. How little the mutilated League of
Nations was taken notice of in international life, was shown by the
attitude of the Soviet Union in the Finnish question. She did not take
into consideration in any way the decision of the League of Nations with
regard to this conflict but pursued her own interests in her dealings
with Finland.

If now, after these statements, I make a proposal to the Court as to
what should be understood by the concept of attack in Article 6(a) of
the Charter, this qualification cannot be related to a definition
recognized in international law. There is nothing left but adherence to
the interpretation which the practice of states and the traditions of
diplomacy are wont to give.

According to the conception prevailing in the year 1939, the outbreak of
war, in whatever way it happened, was not legally appraised. The Kellogg
Pact and the negotiations following it have not been able to abolish
this fact, which was a result of centuries of development. This is
deeply to be regretted, but one cannot ignore reality. The fact that
this opinion, when war broke out, is in accordance with the conception
of international law of the main participating powers that had signed
the Charter, follows from the fact that men of international reputation
in the field of international law were of the opinion that, should the
Kellogg Pact and the system of collective security fail, the traditional
legal conception as to war was still valid.[D]

-----

[D] Oppenheim-Lauterpacht, International Law. 5th Edition. Page 154.

-----

Should Herr Von Ribbentrop really have had the opinion in 1939 that his
acts, measured by traditional diplomatic technique, would be considered
as a crime punishable by international law?

I have already pointed out that generally, and therefore also by Herr
Von Ribbentrop, the then existing frontier line in the East was
considered untenable in the long run and therefore in need of
adjustment. The Peace Conference at Versailles, by satisfying the Polish
demands when this state was newly created, created problems which could
not be solved by international co-operation in the time between the two
World Wars. These frontiers could never be guaranteed within the
framework of European pacts. A guarantee for the Eastern frontier
created by Versailles could not be reached within the framework of the
Locarno Treaties because of the opposing interests of the participating
powers, whereas it was arrived at for the Western frontiers. All that
was achieved after endless efforts was arbitration treaties, in
connection with the Locarno system, between Germany and Poland and
Germany and Czechoslovakia. They did not contain any guarantees for
frontiers, but only a procedure for settling litigations. I shall deal
with them when I come to the various violations of treaties of which
Herr Von Ribbentrop is accused.

After Hitler had also expressed his distrust towards collective security
by leaving the Disarmament Conference and the League of Nations, he went
over to the system of bilateral treaties. In this connection, at the
negotiations preparatory to the agreements between Germany and Poland of
1934, it was clearly stated that a solution of the problems between the
two states should be found in the spirit of the treaty. We will not
suppress here that only peaceful means were considered for this
arbitration and a 10-year nonaggression pact was concluded. Whether
Hitler believed honestly in the possibility of solving this problem or
hoped to change the untenable situation in the East by means of
evolution is of no importance for the forming of an opinion on Herr Von
Ribbentrop’s behavior. He did not take any initiative in this step but
found this agreement an existing political and legal fact.

The experience made in the adjustment of interests of states teaches
that agreements are durable only when they correspond to political
realities. If that is not the case, the force of facts oversteps, of
itself, the original intention of the contracting parties. A great
statesman of the nineteenth century has expressed this truth by saying,
“The element of political interest is an indispensable foundation of
written treaties.”

Thus, the Eastern question was not removed by the agreement of 1934 but
continued to burden international relations. As shown by the evidence,
it became more and more clear in the course of political evolution that
sooner or later solutions of some kind had to be sought. Both the
statute of the Free City of Danzig, which was in contradiction with
ethnological, cultural, and economic facts, and the isolation of East
Prussia through the creation of a corridor, had brought about causes for
conflict, which a number of statesmen feared as far back as Versailles.

Taking into consideration such a state of affairs, the British
Declaration of Guarantee to Poland of 21 March 1939, enlarged on 25
August 1939 into the Mutual Aid Agreement, sufficed in case of the
appearance of a possibility of conflict with this country, to make the
Poles averse, from the very start, to a sensible revision even on a
modest scale.

This Declaration of Guarantee shows once more to how great an extent
Great Britain, taking a sensible political view, drew conclusions from
the decline of the collective security system and what little confidence
she had in the practical results of the moral condemnation of war
through the Kellogg Pact.

Herr Von Ribbentrop had, therefore, to draw the conclusion from the
behavior of Great Britain that the attitude of the Polish Government,
from which Germany was entitled to expect some concession, was bound to
become rigidly inflexible. The developments during the following months
proved this conclusion to be right.

The entry of the Soviet Union into the conflict shows, in particular,
that the coming danger would develop within the compass of the
traditional principles of politics and the realization by each state of
its own interests. The Soviet Union, too, had in her turn left the
ground of the collective security system. She looked at the approaching
conflict from the viewpoint of Russian interests exclusively. In
considering this state of affairs Herr Von Ribbentrop took pains at
least to localize the threatening conflict, if it could not be avoided.
He had every reason to hope for success in this endeavor, as both the
powers mainly interested in Eastern Europe, the Soviet Union and
Germany, concluded not only the Non-Aggression and Friendship Agreement
previous to the outbreak of armed hostilities but simultaneously came to
terms, by way of a secret agreement, concerning the future fate of the
territory of Poland and the Baltic countries.

Nevertheless, the machinery of the mutual aid agreements was set going,
and thereby the local Eastern European conflict became a world
conflagration. If the Prosecution want to apply a legal standard to
these happenings, they cannot do so without taking into consideration
the Soviet Union from the point of view of partnership.

Through the participation of Great Britain and France, the conflict in
Eastern Europe grew into a European one, inevitably followed by the
universal war. The entry in the war of the powers mentioned took place
according to the form provided by the Third Hague Convention concerning
the opening of hostilities, that is, an ultimatum with a conditional
declaration of war.

At the session of 19 March 1946, Mr. Justice Jackson, interpreting the
Indictment, stressed the point that the extension of the war brought
about by the Western Powers did not constitute a punishable aggression
on the side of Germany. This interpretation is in keeping with his
general argument concerning the concept of aggression. If he wished to
carry this through quite consistently, he would logically have to
declare Great Britain and France aggressors against Germany for having
brought about the state of war by means of the ultimatum.

I believe I am in agreement with the Prosecution when I express the
supposition that such a result would not meet with its approval. The
Prosecution have presented their evidence in such a way as to enter into
the political-historical background of the war. They have accordingly
not been satisfied with relying on the formal legal definition or any
single criterion thereof. They herewith confirm my conclusion, presented
by me to the Court, that the definition proposed by the Prosecution is
no suitable basis for the qualification of the indeterminable concept of
aggression.

May I confirm, according to events at the outbreak of the war, the
following:

The Kellogg Pact and the concept of aggression, the Prosecution’s
pillars, do not sustain the Indictment. The Kellogg Pact had no legally
conceived substance for states, much less for individuals. The attempt
to put life into it afterwards by means of a formal concept of
aggression was frustrated by political reality.

Herr Von Ribbentrop’s share in the extension of the conflict to
Scandinavia was so small that it hardly can be laid to his charge as an
individual action.

The interrogations of the witnesses Grossadmiral Raeder and Field
Marshal Keitel have shown beyond doubt that as a matter of fact Herr Von
Ribbentrop was informed of this operation for the first time only 36
hours in advance. His contribution was solely the elaboration of notes
prescribed to him in content and form.

Concerning the actual facts, namely the imminent violation of
Scandinavian neutrality by the Western Powers, he was limited to the
information communicated to him. The evidence has shown, and I shall set
forth later in legal argument, that he as Minister for Foreign Affairs
was not competent to check this information and that he did not possess
any actual means to do so. Presuming that this information was true, he
could justly assume that the German Reich behaved in the intended action
quite in accordance with international law. I leave more detailed
argument concerning this point of law to my colleague, Dr. Siemers, well
conversant with this point, whose client, Grossadmiral Raeder, had
submitted to Hitler a large amount of enemy information and the proposal
for a German occupation of Scandinavia.

In the case of Belgium and the Netherlands it has been proved by
evidence that unlimited maintenance of the neutrality of the
Belgian-Dutch territory by these countries themselves could not be
guaranteed. Even previous to the war there existed between the General
Staffs of the Western Powers and those of both neutral countries
agreements and constant exchange of practical knowledge concerning
tactics and occupation in case of a conflict with Germany. Detailed
deployment plans and fortification systems built under supervision of
officers detached for that purpose by the Western Powers were meant to
prepare the reception of Allied forces. These projects included not only
co-operation of the armies concerned, but also the assignment of certain
civilian authorities to assist in the supply and the advance of the
Allies.

Important about these preparations is the fact that they were made not
only for the case of defense, but also for the offensive. For this
reason Belgium and the Netherlands could not or would not defend
themselves against British bomber formations continuously flying over
them, with the immediate aim of destroying the Ruhr district, the
Achilles heel of the German war industry. This area was also the main
goal of the Allies for an offensive on land.

These intentions as well as most intensive preparations for offensive
measures by the Western Powers had been ascertained beyond a doubt
through sources of information. The grouping of the offensive forces
showed that the Belgian-Dutch territory was included in the theater of
operations. As has already been described in connection with preceding
cases of conflict, such information was continuously passed on to Herr
Von Ribbentrop by Hitler or his deputies. Here, too, Herr Von Ribbentrop
had to rely upon the accuracy of this information without having the
right or the duty of checking it. In that way he, too, became convinced
that in order to avert a deadly danger, namely, an Allied thrust into
the Ruhr district, preventive countermeasures were necessary. On the
basis of these considerations, Luxembourg could not be spared because of
the extensiveness of modern military operations.

In connection with this procedure the Prosecution accuses, among other
things, German foreign policy and thereby Herr Von Ribbentrop, of having
committed an invasion in contradiction to the Fifth Hague Treaty
concerning the rights and duties of neutral powers and persons in case
of war on land.

The Prosecution overlook that this treaty does not refer to drawing a
neutral into a war between other powers but deals only with the rights
and duties of neutrals and belligerents as long as a state of neutrality
exists. The Prosecution have made the mistake of applying their, as I
have shown, erroneous interpretation of the Kellogg Pact, to the pact
which had been made 20 years earlier. There remains no doubt that at the
time of the Second Hague Peace Conference the outbreak of war was a fact
of historical value and not subject to any law. All treaties concerning
laws of war, especially the Rules of Land Warfare and the Neutrality
Pact for Land and Sea Warfare, rest upon the basis of an existing state
of war, hence do not regulate the _jus ad bellum_, but the _jus in
bello_. This fact disposes of the Prosecution’s references to the Fifth
Hague Agreement in all cases of the expansion of war as concerns
neutrals which have ratified this treaty.

It is, moreover, quite doubtful whether the Locarno Treaty can be
referred to, as was done by the Prosecution, in connection with drawing
Belgium into the war. With Germany’s resignation in 1935 the Locarno
system had collapsed, as will be shown by the defense counsel of Baron
von Neurath. All attempts to effect a new agreement which was to take
its place were based on the fact that the actual situation created by
Germany must be taken as the starting point for a new agreement. This is
shown especially by the British and French plans for the intended new
agreement. The attempt to create a new agreement was not successful.
However, the thorough and wearisome negotiations show very distinctly
that none of the signatories considered the Treaties of Locarno valid
any longer. On the contrary, the Western Powers proceeded to consider
among themselves the effects which their obligations of guaranteeing the
Western borders still had after Germany’s withdrawal. Regardless of how
one may judge Germany’s attitude of 1935, it remains to be stated that
the pact system had become untenable thereby. Hence in 1940 German
commitments to the Western Pact of 1925 no longer existed.

I shall on a later occasion discuss the existing arbitration treaties
and treaties by agreement with Belgium, Poland, and Czechoslovakia in
connection with the Locarno Treaty when discussing in general Germany’s
obligation for a peaceful settlement of disputes.

As far as Luxembourg is concerned, not even the Prosecution referred to
the neutralization of this country. Evidently they went on the
assumption that Germany had been forced by the Treaty of Versailles to
give up the rights given to her by the London Agreement of 1867.

When, on 24 March 1941, the Yugoslav Government joined the Tripartite
Pact, Herr Von Ribbentrop could not, in the light of the available news,
assume that a few days later a military intervention by Germany in the
Balkans would be necessary for political reasons. This situation was
caused by the forcible change of government in Belgrade. The reaction to
the joining of the Tripartite Pact by the Stojadinovič Government
resulted in a new political change in Yugoslavia under the leadership of
Simovic, which aimed at close co-operation with the Western Powers,
counter to the idea of the Tripartite Pact.

In view of this uncertain situation in the interior of Yugoslavia, which
on account of the mobilization of the Yugoslav Army and their deployment
on the German frontier became a danger for the Reich, Hitler suddenly
decided on military operations in the Balkans. He made this decision
without the knowledge of Herr Von Ribbentrop, with the idea of
eliminating an imminent grave danger for his Italian ally.

The testimony of the witness Generaloberst Jodl has shown beyond a doubt
that Herr Von Ribbentrop, after Hitler’s decision and after the Simovic
Putsch, earnestly endeavored to be allowed to exhaust all diplomatic
possibilities prior to the beginning of military operations.
Generaloberst Jodl has confirmed here that Herr Von Ribbentrop’s
endeavors were rejected in so rude a manner that, taking into
consideration Hitler’s nature and the prevailing methods, any influence
on him was practically out of the question.

In view of the fact that ever since 4 March 1941 strong British forces
were pushing to the north from Southern Greece, a further localization
of the Italian-Greek conflict was no longer possible. Although this war
had begun in the autumn of 1940 against German wishes, Hitler, with a
view to the general situation, certainly could not tolerate the imminent
defeat of his Italian ally.

When Herr Von Ribbentrop on 23 August 1939 signed at Moscow the treaties
between Germany and the Soviet Union, including the secret agreement
concerning the partition of Poland and the surrender to Russia of the
Baltic States, the sometimes very vehement ideological discussions
between National Socialism and Bolshevism were for the time being
eliminated from the international sphere as an element of danger. This
system of treaties, which was supplemented in the course of the next
month, had a favorable influence on the opinion concerning Hitler’s
foreign policy held by large circles of the German people who were
alarmed by the ideological contrasts.

Ever since Bismarck signed the treaty of benevolent neutrality with
Russia there was a general conviction in Germany that the maintenance of
friendly relations with Russia must always be the goal of our foreign
policy. For the traditional reasons just mentioned, Herr Von Ribbentrop
at that time considered these pacts a strong pillar of German foreign
policy. Because of this opinion, in the winter of 1940 he invited the
Foreign Commissar of the Soviet Union, Molotov, to visit Berlin to clear
up problems which had arisen in the meantime. Unfortunately this second
conference did not bring about the desired results.

Hitler became very much alarmed at the results of this conference and
through secret information as to the future attitude of the Soviet Union
toward Germany. Especially the attitude of Russia in the Baltic
countries, as well as the Soviet march into Bessarabia and into
Bukovina, were considered by Hitler as actions which were apt to
endanger the German interests in the Baltic border states and in the
Romanian oil district. He saw, furthermore, in the attitude of the
Soviet Union the possibility of exercising influence on Bulgaria. He
found his suspicions confirmed by the conclusion of the Friendship Pact
with Yugoslavia on 5 April 1941, at a time when Yugoslavia, after a
change of government, threatened to join the Western Powers.

In spite of these misgivings of Hitler’s, of which he frequently
informed Herr Von Ribbentrop, the defendant tried to avoid tensions. The
Tribunal has permitted me to submit an affidavit which confirms that
Herr Von Ribbentrop, in December 1940 in detailed discussion, still
tried to induce Hitler once more to give him authority to include Russia
in the Tripartite Pact. This documentary evidence confirms that Herr Von
Ribbentrop, after his conference, was justified in the opinion that he
would succeed in this step with the approval of Hitler. Subsequently,
however, Hitler returned again and again to his misgivings, which were
strengthened by the information of his own secret service about military
operations on the other side of the Eastern border. In the spring of
1941 Herr Von Ribbentrop tried to bring to Hitler, at Berchtesgaden, the
German Ambassador in Moscow and one of his subordinates. Neither of the
diplomats was admitted. This ended the attempts possible for Herr Von
Ribbentrop within the scope of his position under the regime. Afterwards
he also believed that he could no longer shut his eyes to the
information which was brought to his knowledge.

As Generaloberst Jodl has testified, he and all the commanders who took
part in the beginning of the Russian campaign were convinced that they
had pushed right into the midst of an offensive concentration of troops.
This is proved, among other things, by maps which were found covering
the territory beyond the German-Russian line of interests. Is it really
to be assumed that such conduct by the Soviet Union is in agreement with
the Non-Aggression Pact?

Around that time the danger of a spreading of the European war into a
world war began to loom more and more threateningly. The United States
entered the arena of war under a neutrality law, by which they subjected
themselves in advance to clearly defined rules in case of a future war.
The mechanism of the neutrality law was set in motion by a proclamation
of the President. It designated at the same time the danger zone within
which American ships could not count upon the protection of their
government.

This attitude at the beginning of the war confirms that the United
States, the author of the Kellogg Pact, was not of the opinion that the
traditional law of neutrality had in any way been modified by it.

The United States, however, during the course of the spreading and the
aggravation of the European war, deviated more and more from the
original line, without the German Reich furnishing any cause for
conflict with them.

After the experiences of the first World War, German general opinion,
and consequently that of Herr Von Ribbentrop, was that an intervention
on the part of the United States should be prevented by all means. Since
the “quarantine” speech of President Roosevelt in 1937 strong contrasts
could, however, be noticed more and more in the ideological-political
train of thought of the world’s public opinion. The situation was
aggravated by the incidents of November 1938 in Germany, which were the
reason for the recall of the Berlin Ambassador to Washington to report,
from whence he did not return to his post.

If, in spite of that, the neutrality policy was further prepared by
legislative acts and became effective at the beginning of the war, the
German Foreign Office, and thus Herr Von Ribbentrop, could conclude that
the existing differences of opinion as to the internal political
development of the State would not change the neutral attitude of the
United States. Considering this expectation, not only everything that
could produce an unfavorable effect in the United States was avoided
from the outbreak of the war; but we also quietly put up with quite a
number of actions by the United States which were weakening Germany and
which were incompatible with strict neutrality.

The world public was informed of the agreement on the political aims of
neutral America and belligerent Great Britain when the leading men of
the two states proclaimed in August 1941 the Atlantic Charter as the
program for the new order of relations between the nations. It had a
character obviously hostile to the Axis Powers and left them in no doubt
that the United States espoused the cause of the other side.

There followed the incidents on the high seas which, as the evidence has
shown, can be credited to the account of the material support of Great
Britain by the United States.

By occupying Iceland and Greenland in the summer and autumn of 1941 the
U.S.A. took over the protection of the most important line of
communications of the then sorely struggling British Empire. This
amounted to military intervention even before the outbreak of the
officially declared war. The so-called “shooting order” of the President
brought about a dangerous situation which might have resulted any day in
the outbreak of armed conflict. Even several months before 11 December
1941, the United States took measures which were usually taken only
during a war. The outbreak of the war was only a link in the chain of
successive incidents, perhaps not even the most important. It was
started by the Japanese attack on Pearl Harbor, which, as the evidence
has shown, was neither instigated nor foreseen by Germany.

According to the formal definition of aggression, the declaration of war
is one of the criteria for the determination of the aggressor. As I have
already pointed out in connection with the spreading of the war in
Europe, this criterion alone without the factual background is no
positive proof for an act of aggression. As a reaction to the numerous
violations of neutrality by the United States, which really represented
actions of war, the German Reich would have been justified long before
in replying on her part with military actions. Whether this right was
exercised after the preceding announcement—that is, a declaration of
war—or not is immaterial.

So far, I have thrown some light upon aggressive acts as enumerated by
the Prosecution from the beginning of the Polish campaign to the entry
into the war of the United States. It remains for me to take up a
juridical position regarding the treaties concluded by Germany, which
provided for a pacific settlement of political conflicts.

Herr Von Ribbentrop is charged not only with having been a party to
aggressive acts, but also with failing in his duty to put into play the
mechanism of the aforesaid treaties previous to an armed conflict. From
the fact that the means for pacific settlement as provided by the
treaties had not been used, the Prosecution draws the conclusion that
these omissions can be attributed in a criminal sense to Herr Von
Ribbentrop. This interpretation however would be erroneous from a legal
aspect.

If we begin by sharing the Prosecution’s point of view, we shall see
that even so the conclusions drawn by the Prosecution cannot be upheld.
Assuming that an individual minister were criminally responsible for the
nonfunctioning of a series of treaties, even the Prosecution would have
to put the question whether the minister was actually in a position to
obtain through his actions a result of any legal consequence. According
to a principle embodied by nature into every system of criminal law on
earth, a defendant is punishable for an omission only if he was actually
in a position, and legally liable, to act. I shall demonstrate at
length, within the compass of my arguments concerning the conspiracy,
how small in fact Herr Von Ribbentrop’s possibilities of influence were.
The decisive point at issue is the fact that he was not legally in a
position to make any declarations to foreign powers binding the German
Reich other than those he was empowered to by the head of the State. As
head of the State, Hitler was the representative of the German Reich
from the point of view of international law. He alone was in a position
to make binding declarations to foreign powers. Any other persons could
legally bind the German State only if authorized by the head of the
State, unless the treaty in question explicitly provided otherwise.

It is a characteristic not only of the German Führer State that the
Foreign Minister cannot independently enter into binding commitments
toward foreign powers. Rather it is a general principle of international
relations that only the organ empowered to represent the state is able
to act for it. The difference between German conditions and those of
democratic constitutions merely lies in the fact that in the former the
Foreign Minister usually has a larger influence on the intentions of the
head of the State. The defendant, therefore, could not have obtained any
legitimate results if he had tried, against the Führer’s wish, to have
recourse to the possibilities of a settlement of conflict as provided by
the numerous treaties of arbitration and conciliation. No one but Hitler
could have put in motion such a procedure. The defendant could have been
in a position to do so by Hitler’s order only. He had not even the right
to have his advice listened to if Hitler chose to ignore it.

These points of view apply for example to the following treaties
enumerated by the Prosecution: The Convention for Peaceful Settlement of
International Disputes of 1899 and 1907 and the Treaty of Arbitration of
1929 between Germany and Luxembourg. It should be mentioned, moreover,
that these agreements by no means provided an obligatory settlement of
political disputes.

As to treaties of arbitration and conciliation with Poland,
Czechoslovakia, and Belgium, concluded in connection with the Locarno
Treaty, the further point applies, quite apart from the legal argument
just mentioned, that they and the Western pact form a political unit.
Even externally, this is expressed in the fact that these agreements and
the Locarno Pact are all of them annexed to the general final protocol
of the powers participating in the Locarno Conference. The question
could, therefore, be asked whether the conciliation treaties share the
fate of the principal treaty, that is, the Western Pact.

I should particularly like to point out that the procedure laid down in
these treaties ended in case of nonsettlement with the League of Nations
Council, in which, at the time of the Western pact, the four
participating great powers had, or—this applies to Germany—were to
have, permanent seats. The withdrawal of Italy and Germany from this
political body deeply affected the political basis upon which the
settlement treaties were based. Moreover, the grouping of the powers had
shifted so much that a part of the Locarno great powers, namely Great
Britain and France, had in the year 1939, through agreements with
Poland, already taken sides in advance in case of a possible conflict.

Concerning the treaties of arbitration and conciliation with Denmark and
the Netherlands of 1926, may I be allowed to point out that the
proceedings provided therein could not be applied at all, as there were
no conflicts between Germany and aforesaid countries; quite to the
contrary, Germany took steps which were aimed at the enemy belligerents
she wished to anticipate in the occupation of these countries.

The Prosecution mentions, moreover, a number of assurances given by
Hitler to countries with which Germany subsequently waged war. Since
Herr Von Ribbentrop did not give such assurances in person, but rather
the Führer, his participation could form a point of argument only if he
had given advice to Hitler in this respect. No evidence has been
produced to sustain such a suggestion. A large part of these so-called
assurances is contained in speeches made by Hitler before the German
public, either in mass meetings or at the Reichstag. It is doubtful
indeed whether such declarations, addressed in the first place to the
German public, could have any binding results in the field of
international law.

Whereas up to now I have spoken about the actions that led to the
outbreak of the war and its spread, I shall now proceed to the second
large complex of the Indictment, which deals with crimes committed
during the war.

The Charter, in Article 6(b), declares violations of the laws or customs
of war to be punishable. This conception is illustrated by a number of
examples such as deportation, shooting of hostages, et cetera. But these
examples fail to complete this conception in full. We are therefore
obliged, in the same way as with Article 6(a), to propose to the Court a
qualification which it can use as a basis for its decisions.

My conception agrees with the procedure proposed by the French
Prosecution. They have declared that they should be free to qualify
definitions of punishable offenses not fully defined by the Charter.
What is good for the Prosecution is good for the Defense.

The use of the expression “laws and usages of war,” as well as the
enumeration of examples, forces one to believe that the Charter aims at
violations of the classical _jus in bello_. I therefore qualify war
crimes as offenses against binding law established between belligerents
by agreement, or against binding and generally recognized prescriptive
law. The individual facts which range under the collective conception of
War Crimes, therefore, must each be examined as to whether they are to
be regarded as such according to the traditional rules applying to armed
conflicts between states. Whereas, in general, classical international
law holds responsible the state as a unit only, there always existed in
the usage of war the exception that also acting individuals were liable
to be held responsible. How far this responsibility of the individual
can be followed by criminal proceedings after the war has been the
subject of many discussions. It can be ascertained that the prevailing
practice of states is that the belligerent who has been injured by a war
crime may also, after the war, call the offender to account. If several
states, which have fought shoulder to shoulder in the war, form a common
court against the war criminals of the conquered adversary, this court
has the collective competency of all the states that form the court or
have joined its charter.

When speaking of the liability of individuals to be punished for crimes
committed during the war against the adversary, who thereafter sits in
judgment upon him, one thinks in the first place of former members of
the armed forces. Already at Versailles there were difficulties in
answering the question as to what extent military chiefs were to be made
responsible. The idea of having a minister of a department held
responsible under criminal law has so far never emerged. In Versailles,
too, the War Criminals Committee was occupied with the question of
making nonmilitary personalities responsible from a purely political
point of view. This committee discriminated clearly between war
criminals, which were to be judged by the Allied court, and guilt with
regard to the outbreak of war, for the examination and judging of which
a special international political court was to be created.

The customary conception is therefore that a minister cannot be held
responsible for violations of the _jus in bello_. The Prosecution can
achieve this only by going the roundabout way via a conspiracy. If we
follow the interpretation given to this conception, the Foreign Minister
of the Reich would, for example, be responsible for the destruction of
the village of Oradour. He would have to take responsibility for actions
which have nothing in the least to do with the Reich’s foreign policy
and are merely isolated actions by some office or other.

As the hearing of evidence has shown, the Reich Foreign Minister was not
only not competent for the conduct of war, but had in fact not the
slightest possibility of influencing military measures as far as either
curbing or furthering them was concerned.

If one wished to regard the various cabinet ministers as a clique of
conspirators also with regard to War Crimes, it would have to be proved
that the military offices competent to conduct the war acted in
agreement with the ministers or at least after having given them the
necessary information.

The concentration of military authorities and ministers into a unity of
purpose, directed toward the perpetration of such criminal acts
abominated by all decent people, is an artificial subsequent
construction of the Prosecution. The unity, which did not exist at the
time when it is supposed to have been effective, has only now been drawn
up as a conception. The facts are now subsequently to fit the
conception. It is obvious that criminal proceedings cannot be built up
on such a method.

Herr Von Ribbentrop cannot therefore be punished without discrimination
for all war crimes committed during the war by the German side. Such a
responsibility for the results would be absolutely grotesque. He could
only be held responsible for individual acts if he himself participated
in certain concrete individual actions.

Herr Von Ribbentrop is accused by the Prosecution, according to the
testimony of General Lahousen, of having issued “directives” to Admiral
Canaris to have Ukrainian villages set afire and to massacre the Jews
living there. First I wish to establish the fact that even a Foreign
Minister cannot issue directives of any sort to a military agency.
Furthermore, it would have been wholly nonsensical to issue such
directives for the setting afire of Ukrainian villages. Ukrainians
supported the German fight against the Poles. Thus hardly anyone will
believe that Herr Von Ribbentrop at that time advised the destruction of
his own allies. My client further insists categorically that not one
word was mentioned about the massacre of Jews in that particular
conference, the less so, since there was no reason for it at all.

I beg the Tribunal to base their decision regarding charges of War
Crimes and Crimes against Humanity raised against Herr Von Ribbentrop,
on the general attitude of the accused with respect to questions of
humanity. As was proved beyond doubt by the evidence, Herr Von
Ribbentrop saved the lives of 10,000 Allied prisoners of war through
vigorous personal intervention. As I will further show, within the
framework of the conspiracy he was instrumental in the unfettering of
British prisoners of war and he used his influence for the observance of
the rules of the Geneva Convention. He was opposed to the branding of
Russian prisoners of war. These are instances upon which the Tribunal
may base their decision with respect to questions of humanity.

This may also be an appropriate gauge for the general behavior of the
accused as concerns questions of humanity in problems where he was not
actively involved.

Furthermore, his attitude in the question of the treatment of terrorist
airmen is charged as a war crime to Herr Von Ribbentrop.

My client, as well as the Defendant Göring, deny that the conference at
Schloss Klessheim mentioned in Document 735-PS ever took place. I should
like to emphasize that General Warlimont, who made these notes, did not
personally participate in the conference. Furthermore, the opinion
allegedly voiced by Herr Von Ribbentrop, according to the document,
stands in contradiction to his usual demeanor in this question. State
Secretary Steengracht deposed here that Herr Von Ribbentrop, after the
publication of the notorious article about lynch law in _Das Reich_, at
once vigorously protested against it.

Further evidence concerning the problem of terrorist airmen, through
examination of the witnesses Generaloberst Jodl and Field Marshal
Keitel, proves that not only the Foreign Office but Herr Von Ribbentrop
personally made every effort in principle to uphold the Geneva
Convention and that Herr Von Ribbentrop together with other leading
personalities took pains to assure the retention of at least the basic
human principles, even approaching Hitler at times when he lost all
control of himself. In spite of all that happened, the fact that in
consequence of these steps the Geneva Convention was not renounced must
be called a success. Especially with regard to terrorist airmen it must
not be overlooked that terror attacks in the form of air bombardments
undeniably constitute a war crime if they are undertaken
indiscriminately on cities and not on military and armament objectives
only. It must be taken into account in the reaction throughout Germany
toward the conduct of the air warfare of the Western Powers that,
according to established and traditional conceptions in armed conflict
between nations, attacks on the civilian population are prohibited. This
thought is not only expressed in the Hague Convention concerning land
warfare but constitutes a binding stipulation of general international
law, binding for all and not applicable to the theater of operations on
land only. Acknowledging this, the Hague Rules of Air Warfare of 1923,
although permitting air attacks on military objectives in undefended
cities, do not permit the bombing of the dwellings of the civilian
population. Although the Hague rules were not ratified, they were in
practice followed by all belligerents and acknowledged as prescriptive
law.

These measures became especially acute after complete air superiority
had been achieved by the Allies and when the resulting constant
low-level attacks on the civilian population took place. These
particular events led for the first time to the discussion whether, in
the face of a warfare which was undeniably violating international law,
it was still of any use to uphold the Geneva Convention in its
substance. These considerations and corresponding reflections led to the
drafting of documents which have become the object of evidence in the
proceedings and which constituted, as shown by the evidence, drafts but
not decisions on this question. They can therefore not form the basis of
a judgment, since surely a state is entitled to ask for the opinion of
the competent authorities on this question.

With the permission of the Tribunal I have presented the role of Herr
Von Ribbentrop before the war, at its outbreak, and through its
duration.

Beyond this the Prosecution holds all defendants responsible for every
crime presented here. The idea of a conspiracy is being used as a basis
for this common liability. If the logical inferences were to be drawn
from this unlimited accusation, then each defense counsel would have to
deal with all the details presented by the Prosecution. The obvious
impossibility of taking up so much of the Tribunal’s time shows how
questionable the basis of the accusation is. Therefore I have to confine
myself to examining the participation in the conspiracy only from the
viewpoint of the actual and legal position of the Foreign Minister in
the Third Reich.

Conspiracy in the sense of the Charter and of the Indictment means a
sort or form of participation in a punishable act. This kind of offense
was, until now, unknown to German and continental legal conception. It
exists only in Anglo-Saxon law. In this realm of law by conspiracy is
understood participation in a punishable act which requires, at the very
least, a common intent to commit a crime. A further prerequisite is that
the mutual plan leads to the perpetration of a definite punishable
offense.

The Charter proceeds from this form of participation in a crime in
declaring punishable all offenses stated in Paragraph 6, assuming the
existence of a conspiracy or a common plan, as a special form of
participation in these crimes. The Charter then stipulates, in Paragraph
6 (a), another special form of conspiracy declaring punishable the
participation in a Common Plan or Conspiracy to carry out offensive wars
or wars violating international treaties.

By the conception “common plan” the Charter and the Indictment obviously
understand something that reaches beyond the sphere of conspiracy. Mr.
Justice Jackson himself admitted that it went beyond the punishable
facts of a conspiracy according to Anglo-Saxon law and thereby created a
conception which is not yet juridically formulated. Both forms of
conspiracy constitute a liability for all acts committed by any one
person carrying out both these forms of conspiracy.

The Indictment uses piracy as an example in order to make the
participants in this alleged conspiracy appear as a single body. The
conspirators are all on board of a pirate ship which, contrary to the
laws and justice of all nations, engages in robbery and therefore is
outlawed. Anyone who punishes the crew helps to restore justice.

At first glance this picture appears somewhat _à propos_. However, on
closer inspection, it becomes obvious that it is only a matter of a
catchword which tries to compare the community of the ship’s crew,
united with the ship for better or worse, to the dissimilar, complicated
conditions of a modern state organization. The ships of all nations are,
according to established, commonly recognized, and uncontested
conception, authorized to combat piracy on the high seas upon
encountering a pirate. The criminal law of almost all nations knows
explicit regulations for combating piracy. The peculiarity of this
offense in distinction from other acts punishable in every country,
whether committed against native, or foreign citizens—for example white
slave traffic acts, counterfeiting of coins, and so forth—lies in the
fact that jurisdiction is carried out on the high seas. Therefore, the
mistaken idea may arise that a crime in the sphere of international law
is concerned. This, however, is not the case. Piracy is a common
offense, the prosecution of which is, by international law, permitted
not only in coastal waters but also on the high seas belonging to all
nations. The basis for this conception was laid in the United States in
the beginning of the last century by decisions given by Chief Justice
Marshall.

The acts with which Herr Von Ribbentrop is charged were committed at a
time during which the German Reich and its opponents confronted one
another first in peace and then in war on the stage of international
relations. An example taken from the sphere of common criminal law as
practiced inside a country is not suitable to convey a plastic
representation of a conspiracy of an entire state apparatus. In the
first place, the idea of the state, which according to the conception of
traditional international law is the only bearer of rights and duties,
is systematically destroyed so that the persons standing behind it and
acting on its behalf may separately be made liable to criminal
prosecution. Since as a rule only a few persons acted directly as
participants in the acts charged, the multitude of these people is then
again compressed into an artificial whole, in order to hold them
responsible also for those acts which were not committed by them.

Here the criticism of the jurist must start. According to our perception
of law and that of all civilized nations, criminal responsibility is
bound to basic rules showing but few divergences. Thus, according to
continental law, only such persons can be held responsible for a
punishable act who deliberately or through negligence contribute to a
definite act. According to unanimous agreement the perpetrator,
therefore, must know the plan to which he allegedly contributed, foresee
the acts committed in executing it, and approve of them.

Participation in the form of conspiracy was until now known as an
offense only to a limited legal circle. Therefore it is familiar only to
that part of the legal systems which are represented by the nations who
are conducting or have joined in the present proceedings. It was
completely unknown to the German conception of law and, therefore, to
Herr Von Ribbentrop at the time of his political activity. This form of
complicity marks a much wider range of actions as criminal than Herr Von
Ribbentrop could have anticipated at the time of his activities in the
field of foreign policy.

But even if this form of complicity is assumed as a basis for legal
findings according to the Charter, neither the official position as
Reich Foreign Minister held by Herr Von Ribbentrop nor the individual
acts committed by him in this capacity can make him appear as a member
of a conspiracy.

The case of Von Ribbentrop shows in particular how, through the
introduction of the concept of a conspiracy, responsibilities become
interlocked which, taking into account the official position and
authority as well as the personal attitude of the individual
conspirators, have nothing whatever to do with each other.

The Prosecution, however, in order to achieve its aim, compresses into a
subsequently fabricated unity a number of actions and individuals,
chosen at random, which have nothing at all to do with one another. If
one followed the Charter and the Indictment, the result—wholly alien to
any actual and legal thought—would be that Herr Von Ribbentrop, while
personally and actually completely eliminated from any influence over
the Occupied Eastern Territories, as thoroughly proved by the evidence,
would have to bear the responsibility for all War Crimes and Crimes
against Humanity committed there, whereas, for instance, the Defendant
Streicher, although he headed his own special department, would be
answerable for the foreign policy.

If one confirms the existence of a conspiracy to commit War Crimes and
Crimes against Humanity it would practically result in making, for
example, Herr Von Ribbentrop and the Foreign Office responsible for such
crimes, whereas evidence has shown that this very office always tried to
observe the rules of warfare according to international law and to
adhere to the Geneva Convention even when this involved a severe
struggle with Hitler.

The conspiracy to commit War Crimes and Crimes against Humanity can
refer only to actual offenses against rules of war, either individual
actions, as, for example, the execution of escaped British Air Force
officers or certain measures incompatible with the accepted rules of
war. In any case, the unity of conspirators must relate to a specific
act or to specific groups of acts of the same nature. It is impossible
to hold a defendant responsible for actions not approved by him or which
he has tried to prevent.

I think the Prosecution will agree that there simply cannot exist any
conspiracy to commit crimes against the usages and customs of war. This
concept is so controversial and is so undetermined in the practice of
the states and in the theory of international law that individual acts,
which in the course of a war may be considered as war crimes, could not
form a part of the plans of the conspirators. It must also be considered
that the development of means and methods of war modified also the
contents of the concept of war crimes. Therefore there can be only a
conspiracy to commit specific or similar war crimes. Not every one of
the so-called conspirators can be held responsible for each and every
action which an objective judgment must define afterwards as a war
crime. Particularly, it would not meet the purpose of chastising the
guilty if the defendants were to be punished according to the general
and artificial concept of conspiracy even for such war crimes which they
tried to prevent with all their efforts.

PRESIDENT: The Tribunal will recess now.

                        [_A recess was taken._]

DR. HORN: With permission of the Tribunal, I shall continue on Page 79
of my final plea.

The point of view just mentioned applies particularly to Herr Von
Ribbentrop. Not only did the military conduct of war have nothing to do
with his department; but he was, as was proved by evidence, expressly
excluded from it by repeated orders of Hitler. His department was only
affected by War Crimes insofar as they led to negotiations with foreign
powers. Moreover the fact, for instance, that after the terrible air
raid on Dresden the execution of over 10,000 Allied prisoners of war was
prevented through Herr Von Ribbentrop’s intervention with Hitler proves
that, when informed of imminent War Crimes, he did what was in his power
to do within his sphere of influence. These arguments and the result of
evidence show how unjust it would be to share the point of view held by
the Prosecution, that is, to hold a Foreign Minister with limited
authority responsible for War Crimes and Crimes against Humanity, the
more so as it has been conclusively proved that he was excluded from any
influence on the conduct of war.

With the Court’s permission I shall now deal with the alleged conspiracy
for the planning and preparation of aggressive wars and the violation of
treaties. Within the framework of such a conspiracy, the defendant is
apparently to be held responsible in his capacity as Minister for
Foreign Affairs and the offices formerly held by him in the diplomatic
service.

This kind of conspiracy apparently deals with any act or plan which has
any connection with war, its preparation, outbreak, and course. As the
individual acts within this enormous range are irrelevant themselves as
regards criminality and until now have never been conceived from the
point of view of criminality under “outbreak of war,” this kind of
conspiracy does not contain any facts so far known by any system of
criminal law in the world. Therefore I can investigate this complex only
from the point of view of Von Ribbentrop’s ministerial position and his
relation to the German Reich which waged the various wars.

Herr Von Ribbentrop, from 4 February 1938, held the position of a
Minister of Foreign Affairs of the German Reich. As shown by the
evidence, Herr Von Ribbentrop was called to his office on 4 February
1938 at a time when the actual leadership of foreign policy had already
passed to Hitler in his double capacity of Reich Chancellor and head of
the State. I have submitted as a document Hitler’s speech of 19 July
1940 delivered at the Kroll Opera House in which he emphasized that Herr
Von Ribbentrop had had to handle foreign policy for years according to
Hitler’s political directives. Herr Von Ribbentrop, therefore, did not
hold the position of a minister as understood by modern political
constitutions. As shown in the above-mentioned speech, he did not hold
it either in fact or in law. This is shown by an examination of the
public law of the Third Reich.

According to constitutional law, as it has developed in modern states in
the course of the nineteenth and in the beginning of the twentieth
century, the department of the Minister of Foreign Affairs belongs to
the executive departments. The Minister for Foreign Affairs has to share
with the Prime Minister the responsibility of conducting foreign policy.
In a parliamentary democracy this involves responsibility towards the
representatives of the people; in a monarchical or presidential
constitution responsibility toward the head of the state. Such
responsibility is actually of political importance only and results in
the resignation of a minister from his office when he no longer enjoys
the confidence of parliament or of the head of the state. Most
constitutions make provisions for the indictment of a minister by the
representatives of the people in case of violation of official duties.
But even when convicted by a constitutional court, through some kind of
criminal procedure, the minister is not punished; but his conduct is
merely declared to have been wrong.

Both possibilities to call ministers to account were provided by the
German constitution of the Weimar Republic. The indicting of a minister
was however never put into practice.

The state law of the Third Reich brought a complete change in these
matters. A short time after Hitler had come to power parliament was
asked, with reference to existing internal difficulties, to give its
consent to an Enabling Act. The German people and its representatives
expected at the time that this authorization was to be used temporarily
and merely for the removal of actual distress. This law became, however,
the foundation of a complete readjustment of the constitution.

The possibility of parliamentary responsibility no longer existed. It
changed into responsibility towards the Führer and Reich Chancellor, in
whose person the authority relinquished by parliament now rested. Now
there remained but one responsibility: that toward the head of the
State. Starting from this parliamentary authorization, all functions
deriving from the authority of the State were concentrated more and more
in Hitler personally. The traditional division of power, the result of a
struggle for constitutional rights lasting more than a century, became,
by the fusion of all means of power, an empty shell and thereby
obsolete. Full powers were concentrated in the hands of the Führer, who
made use of them separately through his plenipotentiaries. The
constitutional jurisprudence of the Third Reich designated this as
change from the actual to the functional division of power.

The individual minister, after this change had taken place, did not act
any longer on his own responsibility but only on the order he had
received from the head of the State. What applied to the individual also
applied to the former Reich Cabinet. It had no longer any influence on
state leadership but constituted merely a collective term for various
branches of the administration which were technically separated. As the
political tasks no longer existed with which normally the ministers as a
group—that is, the Cabinet—had to deal, the tasks of the council of
ministers were automatically settled by the very weight of the facts
themselves. Therefore, as the hearing of witnesses has shown, it never
met during Von Ribbentrop’s period of office.

Even the designation “minister” did not signify any longer the head of a
government department but became a mere title expressing a rank.

The result of this reform was that the Minister for Foreign Affairs also
no longer had the right to determine the outline of foreign policy.
Evidence has shown this fact also in the form of speeches and utterances
of Hitler, in which, for instance after the occupation of the Rhineland
and the Anschluss of Austria, he said that he had brought about
these—as he called them—“great decisions” against the will of his
advisers on his own resolve, referring to his responsibility toward the
German people and to history. Seen from the point of view of
constitutional law, this means that no minister had any possibility of
preventing the decisions. Neither had he constitutionally any authority
to examine the legality of the Führer’s decisions. For the
above-mentioned concentration of all functions of state power in
Hitler’s person, shows that he had both legislative and executive
authority. Any pattern for the acts of legislation was no longer
provided for in the Third Reich. Also there was no measure by which one
could gauge from the tenor of the Führer’s decision whether he acted in
his capacity as legislator or as head of the executive authority. The
conception of material law, which in Germany as in all continental
states was well established up to the assumption of power, completely
lost its meaning. Even individual directives were given in the form of
laws.

In all constitutions the authorities whose task it is to apply laws are
not allowed to examine their purport. This applies even to jurisdiction,
and all the more so to the administrative authorities. The application
of a law that was made in the regular way provided for by the
constitution may not be refused by any office of the state. Examination
even by courts of law is limited to the question of determining whether
the way laid down by the constitution has been followed. This is also
the case in Great Britain and the United States, where decrees issued by
the executive authorities, but not laws passed by Parliament, may be
subject to examination with regard to their content.

In the constitution of the Third Reich there was only one authority for
all expressions of the will of the State—the Führer. Often it could not
be perceived in what capacity he acted, owing to the destruction of the
concept of constitutional law. The doctrine of constitutional law of the
Third Reich therefore was debased to a theology of revelations of the
Führer. The former discriminations no longer existed for the ministers.
The only question that could arise in the constitutional law of the
Third Reich was whether the will of the Führer was expressed in such a
concrete way as to reflect the will of the State.

This constitutional practice was unmistakably the result of having
transferred the pseudo-military way of thinking to the sphere of
politics. The conceptions of obedience and discipline were transferred
to a sphere in which they were out of place.

In connection with the elimination of the traditional division of power,
one fact must be pointed out which is just as characteristic for this
_despotia sui generis_, as it speaks against the existence of a
Conspiracy or a Common Plan. The evidence given shows no kind of
advisory council or any organ of control over the head of the State.
Neither the Cabinet nor the Reich Defense Council nor any other advisory
committee had any influence on Hitler’s decisions. The key documents and
the statements of witnesses show only monologues by Hitler before an
ever-increasing audience. Everything that has the appearance of a
council is in reality a reunion for the receipt of orders. The evidence
presented has definitely shown that efforts to influence Hitler at best
led to unexpected reactions.

Herr Von Ribbentrop and several of the other defendants without doubt
had considerable power in their own spheres, which did not interest
Hitler. They were, however, completely denied participation in the great
decisions on war or peace, armistice, peace offers, _et cetera_.

In the position of Foreign Minister, as held by Herr Von Ribbentrop, an
independent personality was not tolerated. Herr Von Ribbentrop was aware
of this, as State Secretary Steengracht has testified here. He stated
that Hitler at the most had use for a secretary for foreign affairs but
not for a Foreign Minister.

This development in the practice of constitution and government can
hardly be reconciled with the thought of a Common Plan or Conspiracy.
The conspiracy demands, as we have seen, a unanimity or correspondence
in aims in which the participants form their will freely. The political
practice of the Third Reich knew only acclamation.

So far, my examinations have been based on the norms of actual criminal
law as laid down in Article 6. I should not like to close my statement
without drawing the Court’s attention to the relation between politics
and law.

The essence of politics is and remains, in the life of sovereign states,
the defense of the interests of one’s own people. In order not to let
this interpretation of politics degenerate into unscrupulousness,
international life has established the principles of the settlement of
interests and diplomacy as representative of this principle. It is
diplomacy which has had an essential influence in establishing the
principles of international relations and, therefore, of international
law. The imperfection of international law is caused by the coexistence
of many countries confronting one another on a level of equal rights.
Its weak spot was the lack of any superior authority which would have
been in a position to insure the existence of legal order in the same
way as the authority of a state is able to within its own borders.
Therefore at all times the unrestrained display of force has been
allowed a wider range in the international sphere. Statesmen are in duty
bound to take care of their own people’s interests. If their politics
are a failure, the countries they act for have to bear the consequences.
They themselves are judged by the judgment of history. But in a legal
sense they were responsible only to their own state for acts with which
their state was charged by others as infringing international law. The
foreign country injured by the action in question could not indict the
acting individual. The barrier erected by international law, respectful
of national sovereignty, between the acting individual and foreign
powers was only removed in the case of war crimes whereof I have spoken.
At any rate, at the beginning of the second World War this conception
was, despite all attempts to the contrary, the unshaken concept of
international law.

The French chief prosecutor gave, as a reason for the indictment of
leading men of the late regime, the fact that a German Government, which
might have been able to take legal proceedings in these cases, no longer
existed. With the greatest esteem for this polished argument, it cannot
remain hidden to a critical observer that such sharp logic is subject to
false conclusions.

Any organized resistance headed by a national government came to an end
when the German Armed Forces were utterly defeated and the whole of the
German territory occupied by the Allies. The four principal victorious
powers, which form this Tribunal, acquired by their might a legal right
recognized by international law to decide the fate of the German
national territory. They could have divided Germany up. But they chose
another way. In the Berlin Declaration of 5 June 1945, they assumed
“supreme authority within Germany, including all the powers possessed by
the German Government, the High Command of the Armed Forces, and any
state, municipal, or local government or authority.” But this was all.
The declaration expressly emphasized that the transfer of the authority
did not mean the annexation of Germany. The exercise of the claimed
rights was transferred to the Control Commission, composed of the
commanders-in-chief of the four occupation zones.

Since the Berlin Declaration, Germany has been in a provisional state
which is still prevailing. At the Potsdam Conference held in July 1945
the four powers among themselves made further agreements, of which we
were informed by the communiqué of 2 August 1945. The Potsdam Agreement
for the establishing of a Council of Foreign Ministers transfers to the
said Council the preparation of a peace settlement, which is to be
accepted by a German government “when a government suitable for this
purpose has been organized.” A second agreement provides regulations
concerning Germany while under Allied control.

This wording makes it clear that Germany is to remain a national state,
that it is being placed under Allied control, and that the establishment
of a German government is intended. This government is thereupon to
accept peace conditions. This involves a government which is in a
position to enter into commitments toward foreign powers as a partner
qualified in international law.

The victors have accordingly chosen to exercise the right of decision
given to them by conquest in such a way that the German State will not
be destroyed. During the transition period they themselves exercise the
functions of the temporarily non-existing German Government. We are,
therefore, entitled to take the Potsdam Declaration as a conjecture for
the legal review of Germany’s position.

The German State, accordingly, has not been annihilated. It would
therefore be wrong, juridically speaking, and we would incur the
reproach of lack of historical understanding, if we considered as new
that state the direction of which is envisaged under its own government.
Germany is burdened with obligations which arose from her past. This is
possible only if the state, upon whose behavior the obligation was based
and who one day must answer for it, is regarded as the same legal body.
Though the German State, at the moment, is not in position to act
according to international law through its own organs, it has not
vanished from the sphere of the international legal order.

Thus, in view of the fact that M. de Menthon’s premise is untenable, his
final deductions cannot be accepted. Therefore the jurisdiction of the
victorious powers over German subjects with regard to their acts
connected with politics cannot be based on current international law.
Thus the Charter abandons the international legal code. Furthermore, it
contradicts fundamental principles of criminal law. If the French
prosecutor is of the opinion that the Tribunal exercises the penal
authority of the German State, a state which according to his opinion
does not exist at this time, then he must logically apply the sentence
_nullum crimen sine lege_ to the criminal law existing in Germany. An
act could therefore be punishable only if at the time of its commission
it was punishable according to the German law. This does not apply
either to personal criminal responsibility for the violation of
international treaties and assurances or to the participation in the
Conspiracy or Common Plan.

In recognition of this, the Control Council for Germany in its
Proclamation Number 3 has reinstituted in the system of German criminal
law two constitutional principles from which the Hitler regime had
deviated, namely, prohibition of retroaction and analogy.

The political criminal concepts of the Charter set a standard of new
legal principles which must be considered as the embryo of a code of
world law. Herr Von Ribbentrop, at the time when the incriminating
events took place, lacked the apperception that there might be such a
code of world law.

One can dispense with the necessity for ruling in advance that an act is
criminal only in the very few cases where the cruelty of the act is so
evident that there can be no doubt as to its deserving punishment. This
could hold good for acts which were not punished in Germany during the
last years solely in consequence of certain measures of the abnormal
amorality of the Hitler regime.

I have heretofore presented the evidence from the point of view of valid
international law and the Charter which you, Mr. President, in the
session of 20 June 1946, again stressed as the basis for legal findings
in these proceedings. Up to now, the code of international law has been
unable to solve the problems which are to be decided here. On the basis
of this inadequacy the second World War broke out.

The effects of this catastrophe, which this legal code could not
prevent, cannot yet be perceived today. To prevent its recurrence in the
future is the high aim of humanity, which forms the basis of the London
Agreement of 8 August 1945. That this could not yet be achieved is shown
with alarming certainty by the fact that, on the very day on which the
Charter of this Court was proclaimed to the world as a new law, the war
between the Soviet Union and Japan broke out. Its realization had been
promised to the Allies by the Soviet Union 6 months prior to that. To
justify it, it was pointed out, among other things, that Russia had to
settle an old account with Japan. In other words, this typifies a case
of an unprovoked attack.

I have illustrated that the attack and the attacker cannot be dealt with
by a general definition covering every act of reality. The attacker can
only be branded by a world authority. This supreme organ of mankind must
possess not only an actual but also a moral authority. Universal trust
must be put in its impartial judgment. It must be a tribunal standing
high above the conflicting parties; before which these parties appear
only as seekers of justice but may have no place in it as judges.

We live in a period of transition, from an old law under whose rule the
ruins around us were created, to a new code of world law, which while
taking shape, is not yet morally and effectively consolidated.

To judge and punish the acts which were committed by the former Foreign
Minister, Herr Von Ribbentrop, his share in the happenings, the extent
of his inadequacies, and his own personal guilt, is a difficult task
almost beyond human strength in this period of decadence and revival.

THE PRESIDENT: We will call on Dr. Nelte, counsel for the Defendant
Keitel.

    DR. NELTE: “We must approach our task with so much inner
    deliberation and mental integrity that this Trial will later
    appear to posterity as the fulfillment of human longing for
    justice.”

These words of Justice Jackson in his opening speech for the Prosecution
must be the guiding principle for all those who have been entrusted with
the noble task of contributing to the search for truth in this Trial.
That this truth cannot be absolute has already been stated by the
Prosecutors Justice Jackson and M. Dubost. The purpose of the Indictment
is not to determine the historical aspect, let alone the historical
development of this short but so tragically important period, but
instead to find out whether, and to what extent, the defendants sitting
on this bench participated in the events which have affected the entire
world by their consequences and which have brought such indescribable
misery upon it, and not least upon the German people.

In this Trial the Prosecution once stated through one of their qualified
spokesmen that it was their task to submit material that would
incriminate the defendants and submit only such incriminating evidence.
Thus, in contrast to the principle of objective accusation which
dominates the German criminal proceedings, they made clear their
definitely one-sided standpoint in an Indictment which obliges the
Defense to...

THE PRESIDENT: [_Interposing._] I have already corrected this
misstatement which you have made in your speech here, in dealing with
one of the other speeches for the Defense. It is not the practice of the
Prosecution to conceal any evidence which tends in favor of the accused.

DR. NELTE: I am afraid I cannot hear.

THE PRESIDENT: What I said was that I had already corrected the
erroneous view, which is expressed in this paragraph in your speech,
that it is the practice of the Prosecution to conceal anything they know
which, may tend in favor of the accused.

DR. NELTE: Mr. President, on this very spot Mr. Justice Jackson stated,
“We cannot serve two masters,” when he replied to the statement that
according to German criminal law the Prosecution would also have to
produce material in favor of the defendants. What I am stating here is
not said in order to raise any type of accusation against the
Prosecution. On the contrary, from the point of view for which they
stood they have done everything that was possible. I merely wanted to
clarify my point of view as defendant’s counsel and say why...

THE PRESIDENT: The only reason I interrupted you was because of the
sentence in your speech, “They made clear their definitely one-sided
standpoint.” In the second paragraph, the second sentence of that
paragraph, you say,

    “Thus, in contrast to the principle of objective accusation
    which dominates the German criminal proceedings, they made
    clear”—that is, the Prosecution made clear—“their definitely
    one-sided standpoint in an Indictment...”

DR. NELTE: I said “one-sided”—that contrary to the governing principle
of German criminal procedure, which is objective indictment, it has made
clear its definitely one-sided standpoint of indictment which obliges
the Defense to submit all circumstances and considerations which are
indispensable for an objective administration of justice.

THE PRESIDENT: Go on. It may be a different translation.

DR. NELTE: For this purpose, it is first necessary to clarify certain
concepts which are needed for the perception of responsibility and
guilt. As far as concepts of international and constitutional law are
concerned, they have been examined and presented by Professor Dr.
Jahrreiss.

With regard to the sphere of the soldier I should like to make some
fundamental statements. There have been repeated references here to the
concepts of soldierly conduct, obedience, loyalty, performance of duty,
and patriotism. It is my belief that all men recognize these concepts to
be good. But it is permissible to say that not all of these concepts are
unequivocal. Thus are opposed: “best soldierly conduct” and
“militarism,” “natural obedience” and “contemptible blind subservience,”
“the categorical imperative of the performance of duty” and “the
exaggerated sense of responsibility,” “the deep love for one’s country”
and “chauvinism.”

We see that all these concepts can run through the scale of good and
evil. The origin and the essence of these concepts are everywhere the
same, but the forms they take on through tradition and education and by
the effects thereof vary greatly. However, if this is the case, who then
should differentiate and decide whether the feeling is still in the
realm of good or has already reached the sphere of evil?

We are all of us living in a world whose century-old striving has aimed
at the creation of order. Order is certainly a relative concept, too,
but it is everywhere the establishment of the relationship of human
beings to each other which guarantees the best possible means of living
peacefully side by side in view of the intrinsic character of each
country.

This holds true both for the state and for the relationship between
nations. Who should determine in this order what is right and what is
wrong? The criterion for this might be, according to the traditional
conception, only a constitutional, that is, a national one. The drawing
closer of the nations by world traffic and general civilization resulted
in the various national concepts becoming adjusted to each other in
spite of many differences. It must be admitted that this process of
adjustment suffered a harmful set-back through certain National
Socialist doctrines and their methods. Nevertheless, the principle
remains inviolable that the criterion of right or wrong must be a
national one, if order is not to be dissolved. The only thing worth
striving for is the adjustment of nations and national fundamental
concepts to each other as is now being attempted through world
organization.

Although the national criterion, that is, the national judgment of good
and bad, right and wrong, had been well established in any case up to
now, the concepts never have been deprived of their relativity,
especially when national differences existed for other reasons. A
convincing example of this is the opinion expressed about the resistance
movement.

All countries extol what is considered to be the highest form of
patriotism: When someone risks his life for his country under the utmost
danger. However, according to the Hague Rules of Land Warfare such
resistance movement is forbidden. We have here a clear example of the
contrast between ethical and legal evaluation. This proves that there
are no absolute concepts of good and bad or right and wrong and that
beyond all written laws there are unwritten laws which acquit the
culprit when he obeys those higher laws. Those higher laws, however,
also depend on subjective and national, that is, collectively subjective
considerations. If anybody believes something to be good or right, such
faith may come into existence out of an actually higher law, a truly
higher idea; but it may also grow out of misled faith, out of a false
idea. Who would or who could judge whether a faith or an idea was or was
not right? History teaches that usually the successful idea is
recognized as right, to a certain extent because it is a divine
judgment. I do not wish to decide whether that is always true. The
question here, however, is whether the people whose guilt is to be
judged acted in good faith, in accordance with such an idea and such a
faith. If the ordeal has demonstrated this faith to be wrong, the
question remains open whether the people could believe the idea to be
good for comprehensible or explainable reasons.

This question constitutes the problem which concerns not only Defendant
Keitel but also the entire German nation. According to the speech of the
French Prosecution not only the defendants in this Trial are the really
guilty ones, but the entire German nation. The extent and importance of
this thesis are tremendous. Should the Tribunal—if only on the grounds
for its decision—come to the conclusion that the entire German nation
is guilty, every German for incalculable time will bear the brand of
Cain which finally must lead to the destruction of this people and its
dissolution.

It has been stated most authoritatively that there is no intention here
of accusing the entire German people. Through unconditional surrender we
are left entirely to the mercy of the victorious powers for better or
worse. It was said, however, that the verdict of this Tribunal is to be
just. Here in this Court it is not clemency or inclemency which are to
be the guiding principle but justice. Justice does not mean mildness. A
verdict, however, will only be just if it takes into consideration all
the circumstances which underlie the actions and conduct of the
defendants. There is no excuse for what has happened and for what forms
the subject of this Indictment. I can only try to give an analysis.

The misery, the misfortune that has fallen on the entire human race is
so great that words do not suffice to express it. The German people,
especially after having learned the catastrophe that has befallen the
nations in the West and East and the Jews, is shaken by horror and pity
for the victims. The German nation knows what this misfortune means; for
it is stricken as hardly any other nation is, not only in the military
field but through the sinister consequences of air attacks, through the
loss of millions of its youth in the field, through evacuations and
escapes in ice and snow. We know, therefore, what it means to be in
misery and to have to suffer. But while other nations are able to look
upon all this misery and all this misfortune as a chapter of the past,
and in the protection of constitutional order have the comforting hope
of returning to an orderly existence and a happy future, there still
rests upon this nation the gloom of despair. By affirming the guilt of
the entire nation the verdict of this Tribunal would perpetuate this
despair. The German people does not expect to be acquitted. It does not
expect the cloak of Christian charity and oblivion to be spread over all
that has happened. The German nation is ready to the last to take the
consequences upon itself. It is willing to accept it as its fate and do
everything to participate in removing the consequences. It hopes,
however, that the soul and hearts of the rest of mankind will not be so
hardened that the existing tension, in fact the existing hatred, between
this nation and the rest of mankind will remain.

Your task, Your Honors, is a terribly hard one. We not only speak
different languages, each of us feels with the soul of his own country.
Much of what has happened in this country will seem incomprehensible to
you. The feelings of the German people in its different categories are
not your feelings. One of the most essential points, especially in the
case of the soldier, seems to me the way of judging what freedom is felt
to be. In this country, too, the ideal of freedom was proclaimed. All of
us know that the most extreme form of freedom is anarchy. No state
desires anarchy, because it means surrender of its own existence. If
therefore, all countries agree that the absolute concept of freedom is
never worth striving for and can never be sanctioned, there results,
perforce, relativity of the concept of freedom. No concept has been so
misused as the concept of freedom, and yet every political system
proclaims freedom as the greatest of all blessings.

By that, I by no means wish to say that the concept of freedom as
proclaimed by National Socialism was the right solution. What I do wish
to say, however, is that National Socialism also knew the concept of
freedom and made it clear to the people through propaganda that its
conception of freedom was the right one. National Socialism was aided in
this by the fact that under the effects of the Treaty of Versailles
Germany could indeed make no claim to be really free. The limitations of
its sovereignty were so pronounced and so evident that it was easy for
National Socialism to proclaim the fight for the freedom of the
fatherland.

As long as the fatherland is recognized in the world as the highest
worldly possession, endeavors to keep this possession must be understood
and will not be disapproved of even when it is an adversary who makes
them. One may be of a different opinion as to the method which should be
used for the realization of these endeavors and as to how freedom is to
be attained. This, however, is not decided by the individual but by that
person or those persons who hold the power in a state.

Every human being wants something to hold on to in life; he must have it
if he is not to sink into anarchy. Public order at the side of moral
order is a firm support and the foundation of his existence, and this
gives him a feeling of security in his life and professional activities.
It is the deep longing of all civilized men for order which finds its
highest fulfillment in the institutions of the state. On the other hand,
the citizen must have confidence that the state, that is, its official
agencies, will safeguard law and order. In this respect it should not
matter which party provides the guardians of its inviolable principles.
That is just where the confidence of a nation as a whole expresses
itself, namely, by leaving leadership to the prevailing majority.
National Socialism undoubtedly aimed at and succeeded in rousing the
belief in wide circles of the German people that its endeavors were
supported by the majority of the people. It thereby procured for itself
the alibi of legality.

Far from all political considerations, as all the generals and admirals
have testified here, the leaders of the Armed Forces believed in the
legitimacy of Hitler’s Government. It looked upon itself as the
instrument of a legal government, as it did when the Kaiser, Ebert, and
Von Hindenburg were Germany’s representatives.

Like all tendencies, all forms of expression of feeling, the feeling of
patriotism and of a soldierly attitude bears in itself a tendency to
become more radical and thereby to degenerate, if external circumstances
create an actual basis for it. We have experienced the exaggeration of
sound national ideas into national chauvinism, and we can observe
retrospectively how the sound soldierly idea was exaggerated by
influences foreign to its nature into the militaristic form of
expression. All these developments are not desultory, which would make
them easily recognizable and regulated. The driving forces are mostly
not apparent to those whom they concern. They are like a poison which
acts slowly and unnoticed and the effect of which results one day in a
horrible eruption. It needs no special explanation that a component part
of the soldierly and military person who is being geared to a possible
war is ruggedness, and in its intensification it turns into brutality.
One often finds on the part of famous—and not only German—war leaders
the view that the brutal war is frequently the kindest if it leads to a
quick ending. This, of course, is desired by every war leader. Once
peaceful restraint is removed by war, all that remains is brutality. It
reveals the causes of total war and the source of the terrible disaster
which resulted from it.

The Defense has a difficult task in this Trial. The German people look
to Nuremberg, disunited in themselves. Some are skeptical and partly
hostile toward the Defense because they believe the Defense is favoring
those whom they consider as war criminals and believe that the Defense
wishes to prevent that just punishment be meted out to the defendants.
Others say the Trial is just a show, at which the Defense Counsel act as
dummies to give the Trial the appearance of a judicial procedure.
Accordingly, in the view of these Germans we would make ourselves guilty
of favoring the enemy.

We have no reason to justify our actions because by our participation at
this Trial we are fulfilling a task in line with the precept of our
calling, the importance of which needs no justification. It consists of
co-ordinating our efforts in the interest of clarifying the truth—the
importance and effects of which is today incalculable for our German
people—of getting to the bottom of the causes and of answering the
question as to how all this could have happened.

Only the clear recognition of the cause, the forces, and the people
which brought about the disaster which has come over this world will
create the possibility for the future of our people to find the way back
again to the rest of the world.

The task of this Tribunal is not to search for the political, economic,
and metaphysical reasons for this second World War and not even to
examine the course of events in its entirety, but rather only to
determine whether and what part these defendants played in that which
the victor nations made the object of these proceedings.

The task of the Defense, within the framework of their co-operation in
finding the truth, consists of examining which factual and legal points
could be stated in favor of the defendants. It should be said here that
with all the co-operation on the part of the Tribunal shown to the
Defense in producing their evidence, the actual possibility of producing
defense material for the defendants was limited. Justice Jackson said in
his basic prosecuting speech...

THE PRESIDENT: You seem to be coming back to further attacks upon the
way in which this case has been tried and that is not what you are here
to do now. What you are here to do now is to present the case on behalf
of the Defendant Keitel.

I see that further on here you go on to complain about alleged
noncommunication to you of various documents and you refer to a
discussion on the subject which took place as long ago as February of
1946. On that occasion I expressed the view on behalf of the Tribunal
that the French Prosecution might properly show to you or give you the
opportunity to look at their documents. From that day to this, that is
to say from February until July, you have made no application to the
Tribunal or made any complaint to the Tribunal that that has not been
done; and now, in your final speech, you make this complaint that you
have not been allowed to see the documents in spite of the fact that in
February I expressed, on behalf of the Tribunal, the opinion that you
might see such documents.

Well, it seems to me that it is a waste of time, a waste of our time now
to make these complaints after all these months, apart from the fact
that you have already spent time which has been involved in reading 11
pages of your speech without coming to anything which really affects the
Defendant Keitel.

DR. NELTE: Mr. President, I believe that in February you told the
Prosecution, according to the record, that they should place these
documents at my disposal. The Prosecution, unfortunately, have not
placed these documents at my disposal.

THE PRESIDENT: Why did you not come back to the Tribunal? You knew
perfectly well that I had expressed my opinion on behalf of the
Tribunal; and if there was anything to complain about, you had full
access to the Tribunal from February until today. It seems to me that it
is a frivolous complaint to come now.

DR. NELTE: I hope, Mr. President, that nevertheless the facts which I am
putting to you in my manuscript will be considered by the Tribunal. You
will notice that I shall refer to this matter at a later stage. On 1
February the session took place during which this affair came up, and on
11 February I went to the French Delegation.

THE PRESIDENT: That is what I have stated, Dr. Nelte. I have already
pointed that out to you.

DR. NELTE: And the French Prosecution did not give it to me.

THE PRESIDENT: Why did you not come back to the Tribunal if you had any
complaint to make? I have said—and I repeat—that I think to make a
complaint now after not having made it for all these months is a
frivolous complaint and an attempt to create prejudice, and I should be
glad of your explanation.

DR. NELTE: Mr. President, it is merely an attempt to show you that I did
not wish to raise a complaint about the Prosecution, recognizing as I
did that the Prosecution did not want to help me. I have never been
inclined to raise complaints about higher authorities, and I did not
want to do it in this case either.

THE PRESIDENT: Dr. Nelte, I think that is a most unfair and a most
improper thing for a responsible counsel to say. I think the mention of
such a complaint is, as I have said, simply an effort on your part to
create prejudice against the French Prosecution and against the fair
conduct of this Trial.

DR. NELTE: Mr. President, in my view it was merely meant to show how
difficult it was for us to find material in favor of our clients.

THE PRESIDENT: Well, perhaps you will try and get on to something that
is really material for the Tribunal to consider.

DR. NELTE: May I ask you to turn to Page 15 where, under Figure 3, I am
dealing with the documents.

The document governs the hearing of evidence before this Tribunal.
Against that the witnesses remain in the background. More important is
the examination of these documents to ascertain the possibility of their
utilization and their probative value.

The Prosecution has submitted as evidence to a large extent official
reports which are admitted according to Article 21 of the Charter. I
intended to show with respect to a number of these documents the
conditional value of such reports as evidence. But I shall limit myself
to a few fundamental arguments in this connection, trusting that you,
Your Honors, in examining this kind of evidence will take my statements
into consideration.

These numerous official reports submitted contain factual statements
which to a great extent are based on witnesses’ testimony. These
testimonies are not always related in the form of protocols but as
summarizing reports. I do not want to dispute that these testimonies of
witnesses are made as deposed in the reports. However, I will not do
injustice to any of the witnesses who are not known by the Tribunal and
whose testimony is hard to verify for lack of a personal impression,
when I say that it concerns mostly very subjective attestations. There
are a number of documents in which this is clearly recognizable, and in
fact stated, and even documents in which hatred finds its clear
expression. I can understand the hatred of these hard-hit people. The
suffering they had to endure was so great that one cannot expect
impartiality from them. I may, however, say too that such personal
feelings are not conducive to rendering the testimony of these sorely
afflicted ones a suitable basis for finding the real truth. I am
thinking of the form of oath so often heard here on the part of the
witnesses: “Swear that you will tell without hatred or fear...” And
these official reports often contain not only factual statements, but
final conclusions and judgments. To this extent, the probative value of
these official reports cannot be recognized. In part these judgments go
so far that outside the sphere of those directly involved they level
reproaches against authorities, that is, the OKW and Keitel, without it
being possible to recognize from the document itself on what the
conclusion drawn rests. As long as it is a question of the indictment of
an individual like the Defendant Keitel, a document used in evidence
must give a proof which yields concrete facts for responsibility or
which at least reveals causal connection. Above all, it cannot suffice,
in order to consider Keitel’s responsibility as proved, if in such
reports crimes committed by soldiers and officers of the Army or of the
Armed Forces are alleged in order to derive responsibility on the part
of the Defendant Keitel from this fact alone, because he was the Chief
of Staff of the OKW.

It must be added that in these reports military agencies have often been
erroneously named and confused; for example, when the Defendant Keitel
is spoken of as the “High Commander (Oberkommandierender) of the
Wehrmacht,” which is called “OKW” instead of “OKH.” It is not always
possible to decide to what extent it is a question of an erroneous
conception on the part of the Prosecution or whether it comes from a
translation which is not in accordance with the meaning.

In order to examine the responsibility of the Defendant Keitel, I wish
to make clear to the Tribunal, in a manner which excludes any doubt,
what the channels of command and competence were and to this end I have
submitted two affidavits to the Court: a) “The Channels of Command in
the East” (Document Book 2, Keitel-10); b) “The Development of the
Situation in France 1940-1945 and the Military Authorities” (Document
Book 2, Keitel-13). The latter affidavit has also been signed by the
Codefendant Jodl. I refer to these affidavits and make them the contents
of my argument without reading from them.

Finally I would like to direct the attention of the Tribunal toward
other circumstances which may well impair the probative value of the
documents which the Prosecution has submitted and you have accepted—for
example, when documents do not bear any signatures, and it is impossible
to decide whether it is a question of copies of documents which have
actually been issued. As an example I will refer to Document 081-PS,
which was submitted by the Prosecution for Keitel’s Indictment during
the question of the treatment of prisoners of war. As far as its
contents are concerned it is a fabulous document. Keitel does not
remember ever having seen this report or ever having knowledge of the
details contained in it. From all appearances one must consider this
document as the draft of a report which was not issued, for:

a) it bears neither a signature nor an initial as is usual in copies,

b) if this letter had been sent out, it would have a blank journal
number; and

c) the letter was not found at the addressee’s. In such cases mere
knowledge of the addressee—in this case the Defendant Keitel—and the
consequent deduction of his guilt in omitting to take measures to change
conditions cannot be considered as proved.

I come to the Indictment against Field Marshal Keitel. I shall shorten
the reading of Pages 19 to 21. The reading of the general Indictment and
the special Indictment in the trial briefs can be omitted here since,
with the exception of the Jewish problem and the persecution of the
Church, there is no part of the Indictment which the Prosecution has not
raised against the Defendant Keitel.

I should wish merely to point out that the original general Indictment
holds Keitel responsible only for the period after 1938 and secondly,
that at the beginning of the Indictment, Keitel is described as Chief of
Army Command. According to the evidence submitted by the Prosecution,
Keitel was also held responsible for the period after 1933, although the
American, British, and French Prosecutions seem to have dropped the
allegation that Keitel was Chief of Army Command. The Indictment of
Field Marshal Keitel is split, therefore, between the periods 1933 to
1938—that is, 4 February 1938—and from 4 February 1938 until the end.

I shall now continue on Page 21, the last paragraph.

Herewith the defendant is not only indicted as a member of the
conspiracy but is also accused of personally participating in all the
crimes in the Indictment. The space which the Prosecution has devoted to
the defendant in its statements corresponds with the comprehensive
Indictments. The name of no other defendant has been mentioned so often
by the Prosecution as that of the Defendant Keitel. Again and again we
hear the words “Keitel’s order,” “Keitel’s decree,” and just as often
“order of the OKW,” “directives of the OKW,” along with Keitel’s name as
“Chief, OKW” after 4 February 1938.

From this is derived the very substance of the Indictment, namely, the
position the Defendant Keitel occupied after 4 February 1938. But from
it is also derived the scope of the justification. Here it is not a
question of examining to what extent the defendant participated in the
individual facts of the case, which in the long run arose from the
so-called “Keitel orders” or “OKW instructions”; but what matters is the
position he occupied—whether he took part and what part he took in the
planning and execution of those orders and instructions, and finally and
most important of all, whether his part in it was causal and culpable in
the sense of the law which is to be applied here.

It seems to be of importance to stress from the outset several points of
view which are important for the treatment of the case and for its
judgment.

THE PRESIDENT: Would that be a convenient time to break off?

              [_The Tribunal recessed until 1400 hours._]




                          _Afternoon Session_

DR. NELTE: The defendant has declared that he admits the objective, that
is, the factual contents of the general Indictment to have been proved
(that is to say, not every individual point), taking into consideration
the law of procedure governing this Trial. It would therefore be
senseless, despite the possibility of refuting various documents or
individual facts, to attempt to shake the Indictment as a whole.
Therefore, I shall confine myself mainly to the questions concerning the
subjective facts and the conspiracy, and I will treat only these
individual points which require treatment because of their special
importance concerning the personal participation of the Defendant
Keitel.

The disproportion between the import of past events and the defendant’s
fate as an individual is so great that the Defendant Keitel, even if not
impelled by conscience, must have known after reflection that such a
course on my part would lay him open to the suspicion that he was
fighting here for his life. But the defendant has already made it quite
clear in his argument that he is not fighting to save his head, but
fighting to save face.

The defendant belongs to those men who came into the public eye through
Adolf Hitler’s death. From 1938 onward he was in his closest circle and
was his almost constant companion. It is clear to him what that means
for this Trial. It has often been alleged by the Prosecution that by
referring to the dead the defendants desired to unload their own
responsibility upon them. If it is the purpose of this Trial to obtain
the most faithful picture possible of events and connections, it is not
fair to start out by discrediting any mention of those who are dead, and
who—as the Prosecution also know—are the major culprits. This is
especially true of the Defendant Keitel, whose position, influence, and
actions cannot possibly be judged correctly without throwing light upon
the person of Adolf Hitler and upon his relationship with Keitel.

As can already be seen from Mr. Justice Jackson’s opening statement, we
are dealing here with an indictment against the National Socialist
system. Actually, the Indictment is a global indictment against this
system, split up into 21 individual indictments. The individual
defendants are, to a certain extent, mere symbolic figures of the
spheres of authority of the State which was ruled by this system:
namely, Party, Government, and Armed Forces. If I understand Mr. Justice
Jackson correctly, he goes even further in saying:

    “Above all personal forces are nameless and impersonal fores;
    their conflict with each other makes up much of humanity’s
    history.... What are the real forces which are battling here in
    front of you?”

This statement raises a problem which, Gentlemen of the Tribunal, cannot
be left unmentioned at this Trial, a problem which M. de Menthon also
pointed out: The importance and influence of those forces which shape
fate. Fate and guilt are not two poles which exclude each other from
their respective spheres; they are areas which overlap so that there are
spheres of life and spheres of activity in which the interplay of these
two forces make the world move. One can only hint briefly here as to
what forces are at work which shape fate, that is to say, what forces
cannot be considered as originating in the conscious will of the
individual defendants: The sense of national unity, historic events,
opinions which are rooted in tradition and environment. Therefore, I
will have to go into this background insofar as it is relevant to the
Defendant Keitel as a person and as a type of one of the groups under
the Indictment, because thus only will you be given the possibility of
obtaining a correct picture of the share which the Defendant Keitel had
in what has happened.

I also want to state that everything I am about to say is said with the
full agreement of the Defendant Keitel; and insofar as aspects and facts
are stated which might exonerate the Defendant Keitel, they should be
taken as a contribution toward the clarification of what has happened,
and as an answer to the question of how things could have reached that
point. He does not wish to have his position or the part which he played
in this drama minimized, but he is anxious at the same time to avoid
giving a distorted picture of his character. The defendant has already
stated on the witness stand that he was grateful for the opportunity
this Trial afforded him to give an account to the world public and the
German people of what he did and why he did it. He wishes to help in
ascertaining the historical truth of what happened.

I consider it my obligation to express this opinion of the Defendant
Keitel because this attitude, based on such reasons, made it
considerably easier for me to conduct his defense. It was, and is, clear
to the Defendant Keitel that if one considers the horrible consequences
and monstrous deeds which—without here raising the question of
guilt—undoubtedly were committed by German people, and which can
indisputably be traced back to orders and directives with which Keitel
came into contact in some form, then one will experience a feeling of
guilt, without considering whether this is guilt in the legal sense or
the tragic feeling of being linked by fate with the causes and thereby
also the consequences.

The Prosecution has maintained that:

    “At one time all the defendants had banded together with the
    Nazi Party for a plan which they well knew could be realized
    only by the outbreak of a war in Europe.”

With regard to the Defendant Keitel, it is said that from 1933 on he
took active part in this conspiracy.

To prove its thesis the Prosecution stated:

(a) that the National Socialist program in itself, according to its
wording and meaning, could be realized only by using force;

(b) that the Defendant Keitel recognized, or should have recognized
this;

(c) that recognizing this he, together with the others, especially the
co-defendants, planned and prepared aggressive wars.

As regards these statements, I would like to call the Tribunal’s
attention, first of all, to the principal part of Mr. Justice Jackson’s
bill of Indictment, in which he deals with the program of the Party. He
mentions there a number of points of the program, about which he says:

    “Naturally, these were all aims which were legally
    unimpeachable.”

At a different point he says:

    “I do not criticize this policy; I wish it were generally
    recognized. Naturally, this acknowledging criticism is subject
    to the one limitation: As long as these aims would be achieved
    without an aggressive war.”

According to that, the Prosecution itself do not assume that the wording
and meaning of the Party program were such that normal persons would
recognize that these Party political aims could be realized by use of
force only. I do not wish to repeat what in this connection was said by
the individual defendants at their hearings in court. Especially
convincing appeared to me what Dr. Schacht stated on this subject. He
concludes his critical examination of the important points of the Party
program with these words:

    “These are essentially the contents of the National Socialist
    Party Program, and I cannot find that anything criminal lies
    therein.”

I quote this statement especially because it shows how this program and
its recognizable objectives affected a person who may be characterized
as intelligent, realistic, free from emotional impulses in politics, and
possessing economic penetration and judgment. If that person did not
recognize that the Party aims were to be realized by use of force, how
was the soldier Keitel to come to such a realization?

Keitel was a professional officer. As such he could not be a member of
the Party. Officers were prohibited from any political and Party
political activity. The Armed Forces command was intent on keeping the
influence of Party politics away from the Armed Forces. This was true
both for the time before 1933 and afterward. Hitler himself confirmed
this principle because he clearly recognized that the time was not yet
ripe for giving the corps of officers, let alone the senior officers, a
political character. According to the tradition and conception of their
profession, those senior officers had a “national attitude,” as one used
to say, and they welcomed the national points of the program which were
placed in the foreground by Hitler; they were glad about the
co-operation of the Armed Forces and without hesitation placed
themselves behind the Government led by Hitler when it proclaimed the
fight against the Treaty of Versailles, especially against its military
political clauses. An agreement going beyond these aims, or possibly a
union with a political object in view, did not exist. The generals,
among them also Keitel, thought no differently from millions of Germans
who were not Party members or who were opponents, but who regarded the
national aims as being a matter of course.

Now, one cannot fail to see that it is somewhat different if millions of
Germans, who had no influence, supported that part of the program
relating to the national aims, or if the senior officers, who led the
Armed Forces, support it. Furthermore, it cannot be overlooked that the
realization of these national aims carried with it the danger of a war.
But the state of things seems to me to be such that the generals saw the
danger of war not so much in the fact that Hitler wanted to realize
these national aims by an aggressive war, but rather in the fact that
the realization of these aims would entail sanctions by the former enemy
powers. The idea of a realization by aggressive, warlike means was far
from the generals’ minds for the absolutely compelling reason of
military impotency. I shall later deal more in detail with this problem,
which is closely connected with the rearmament. Here it is only
important that the circles to which Keitel belonged—and I should like
to add, between 1933 and 1938—

(1) had no contact with the Party program;

(2) had no relationship with Party circles;

(3) sympathized with a part of the Party program because it corresponded
to their national attitude;

(4) did not think of realizing these national points by an aggressive
war, because it would have been hopeless from the military point of
view.

Now one could argue that although the generals themselves did not think
of waging an aggressive war, they certainly recognized, or should have
recognized, that Hitler had the intention, if not now, then in the near
future, of waging an aggressive war.

The Prosecution believes it can be presumed that the Defendant Keitel
had this knowledge from 1933 on. The argument of the Prosecution that
this knowledge is equivalent to knowledge of the National Socialist
program has been refuted; the same holds true of the knowledge of the
book _Mein Kampf_—assuming he possessed the book. Therefore, the
question is only whether Keitel had knowledge of Hitler’s intentions
regarding an aggression for other reasons. For the period up to 1938
Keitel could not have obtained knowledge from Hitler himself because
Keitel spoke with him late in January 1938 for the first time. The
speeches which Hitler made before that time, just as those of the other
Party leaders, were unambiguously aimed at preserving peace. Looking
back, one might call it propagandistic camouflage of opposite
intentions. If that were the case, then this camouflage successfully
deceived not only many millions of Germans, but also the foreign
countries which were partly critical and partly hostile toward National
Socialism.

Keitel believed the protestations of peaceful intentions, and saw their
honesty confirmed also by official proposals of disarmament and treaties
with England and Poland. He believed them all the more because, as has
already been said, an aggressive war appeared to him an impossibility.

The Codefendant Von Neurath too, frequently declared here that all his
information and knowledge of Hitler’s policy up to 5 November 1937
justified his firm conviction that Hitler did not want to realize his
political aims by force or aggressive wars. It was only by the speech of
5 November 1937 that this conviction of Von Neurath’s was shaken.

In the arguments in Dr. Schacht’s defense to which I referred, those
facts were presented which show a contradiction between the former
conduct of the victorious powers and the thesis which the Prosecution
advances on this question.

Through their official relations and beyond these, the victorious powers
showed that, despite their knowledge of all the circumstances of which
the defendants are now being accused, they, that is, the victors, did
not believe in Hitler’s intentions, or did not recognize these
intentions of realizing his aims by aggressive war.

The Prosecution now makes the accusation against the defendant that he
knew, or ought to have known, such intentions of Hitler. This is not
convincing, and I can leave it to the Tribunal to judge who—if all
contingencies are taken into consideration—had better possibilities of
obtaining information on Hitler’s true intentions. I believe the
Defendant Keitel may claim for himself the same good faith and the same
ignorance, unless such knowledge or participation itself results from
other circumstances.

Such circumstances during the years 1933 through 1938 may have concerned
Keitel’s activity in connection with rearmament and in the Reich Defense
Committee. The charge of illegal rearmament includes two facts which
have been summed up by the Prosecution:

(1) Secret rearmament by circumventing the Treaty of Versailles;

(2) Rearmament with the purpose of planning wars of aggression.

For a judicial consideration, however, these facts must be kept strictly
apart; for they are different with respect to cause and effect, and they
must also be legally assessed from different points of view.

The time between 1933 and 1938 is the fateful period, a period of
development and conversion. The forces of the hitherto existing order
are struggling against the new which have not yet taken definite shape.
Everything is in fermentation. The aims remain obscure. They are
camouflaged by the adoption of existing nationalistic tendencies. By
clever propagandistic utilization of these tendencies, the psychological
basis for the aims pursued by the new rulers is being created without
being noticed by those whom it concerned. Here lies the problem of the
Armed Forces leadership and of the Defendant Keitel during this period
with which I am going to deal now.

This problem cannot be solved without taking into consideration
Germany’s military position. In judging the then Colonel Keitel another
consideration enters the picture: how the special sphere to which he
belonged was affected by this situation. Keitel considered the Treaty of
Versailles, and especially the military clauses, as a humiliation for
Germany. He considered it a duty toward his country to collaborate in
putting an end to this situation. He was convinced that the Treaty of
Versailles, because of its impossible military and territorial
stipulations, would have to be revised some day. Such a revision
appeared to him imperative, in the interest of justice as well as of
reason, if a lasting world peace was to be preserved. On the basis of
this conviction he believed that as a German and a soldier, he was
entitled, in the official capacities in which he acted during this
period, to interpret the military stipulations of the Versailles Treaty
literally, even if this was in contradiction to the spirit of the
stipulation. His justification for this was that the stipulations
limited the possibilities of development in an unbearable manner, that
is, in a manner altogether insufficient for an effective defense. Though
he did not participate personally, he did not consider it wrong for
Germany, under the given circumstances, to construct submarines in
Finland, not for herself, but for the purpose of gathering experience
and training specialists; or to maintain construction and designing
offices in Amsterdam in order to observe the progress achieved in the
field of aeronautics and to make use of it without actually building
planes. Symptomatic of the way democratic Germany of that time
thought—without consideration of position and party—was Dr. Brüning’s
statement which on 15 February 1932 was broadcast over all U.S.A. radio
stations on the occasion of the meeting of the disarmament conference. I
am going to quote some passages from that speech:

    “The inner-political fights in Germany are very bitter in their
    outward forms, to be sure; but this must not lead one to
    overlook the fact that despite many differences there exist
    indisputably many things in common also. On the two decisive
    foreign-political questions of today, the questions of
    disarmament and reparations, uniform opinions prevail among the
    German people. The demand for equal rights and equal security is
    shared by the entire German people. Every German Government will
    have to uphold these demands. That the fight of the parties as
    to the road which our politics must take is perhaps more bitter
    in Germany today than in some other countries, is a result of
    the deep misery which weighs heavily upon Germany and greatly
    burdens the people’s soul.”

In connection with this point I also refer to the testimony which the
Codefendant Von Neurath gave on 22 June 1946. These words which Brüning
spoke prove that there was a demand which was upheld by the entire
people irrespective of the difference in parties: The demand for equal
rights and equal security. The objection to that is: A demand, even if
upheld by the entire people, does not in itself create the right to
violate or circumvent established regulations. In principle, one can
accept that. However, things were not as simple as that. I do not wish
to harp upon a fundamental law applying to all countries and giving
every nation the right to create for itself a certain state of defense.
But even if one is not prepared to recognize such a fundamental law, one
will still perhaps understand the state of emergency which actually
exists when a country is so limited in its military potential that it is
not only liable to military attack by any neighbor but also condemned to
political impotency.

In the course of the hearing of evidence the Tribunal has had occasion
to recognize that this was true with regard to the situation in which
Germany found herself in the year 1933. I want to call your attention to
the following passages of the Field Marshal’s report which was submitted
to the Tribunal. The following passages, written by this outstanding
soldier, summarize as follows the experience of a patriotic and military
life as regards the point discussed here under the title “Rearmament”:

    “Nature is inclined to pass over weak people. The law that only
    the strong survive is generally recognized...”

I quote further:

    “The world does not take seriously the wishes of the weak.
    Weakness is too great a temptation for the strong.”

And finally I quote:

    “Above all, it seems to me, we must correct the tragic
    misunderstanding that a policy directed at security is a war
    policy.”

The best witness with regard to this question, which is so important for
the Defendant Keitel, is the book by a British Major General, A. C.
Temperley, (Publishers Collins, 1938) _The Whispering-Gallery of
Europe_, for which the British Foreign Secretary of the second World
War, Mr. Anthony Eden, wrote a very friendly, concurring preface.

THE PRESIDENT: Dr. Nelte, wouldn’t it be possible for you to pass over
the reading of these passages which come from the book of Major General
Temperley? The Tribunal will take notice of them. There are quite a
number of long speeches from the book.

DR. NELTE: I intended to ask the Tribunal whether it would kindly take
judicial notice of these passages if I submit them.

They carry particular weight because Temperley reports and judges
retrospectively from the year of 1936.

The statements made by Temperley, who witnessed the disarmament
conference, the official negotiations and the negotiations behind the
scenes, are deeply moving because they reveal the tragic—I must use the
word—fateful—and primary conflict: fateful because the thesis
presented by the representatives of the different countries—which was
derived from the national, given conditions and from traditionally bound
conceptions—proved that the difficulties could not be overcome and thus
formed the origin of the confusion the last consequences of which we
have just experienced. Temperley says:

    1) (Page 50) “The French had studied the question of disarmament
    much more thoroughly than any other nation, and some of their
    best brains of the General Staff and Naval Staff had examined
    the problem for months... To characterize their problem roughly,
    it was their goal to disarm themselves as little as possible
    although they were the strongest power of the world, but at the
    same time to keep Germany in a state of disarmament down to the
    minutest detail according to the conditions of the peace
    treaty...

    (Page 71) “In the report which I gave, I spared neither the
    French nor us. We had made big mistakes, but at that time I came
    to recognize that in reality the French never thought of
    disarming at all... M. Paul Boncour certainly was honest and
    worked intensively in order to achieve success, but the pressure
    of the French General Staff upon the Government was too great...

    2) (Page 126) “Mr. Stresemann knew his people best. It was a
    race against time. How long could he keep his people in an
    atmosphere of cooperative acquiescence without any tangible
    success in the form of concessions on the part of the Allies?
    Ought the Allied Governments to have given faster and more
    willingly what they were ready to give? Would this gesture have
    prevented the catastrophe?... Doubtless, history will provide
    the answer. I do not know what kind of an answer it is going to
    be, but it seems certain to me that the most important period,
    when Germany turned away from the road of peace, will be found
    to be the period of co-operation between 1929 and 1930... Would
    a less hesitating policy as regards the cancellation of the
    debts, economic reconstruction, and concessions in the treaties
    have prevented Hitlerism and all its consequences? Who knows?...
    In his _Review of International Affairs_, 1930, Professor Arnold
    Toynbee writes: ‘For the foreign observer who visited Germany at
    that time it was a terrible and strange drama to see a whole
    nation—one of the greatest and most civilized nations of the
    world—engaged in a heroic struggle against fate, half paralyzed
    already in titanic battle, driven by the conviction that its
    steps had already irresistibly been led on to the path of
    destruction.’ (Pages 128 and 129) “The German people had lost
    hope... The French had always contended that Germany would
    maintain a pretext of modesty as long as the Rhineland was
    occupied, and that when the occupation ceased the true color
    would show... This has proved to be a good prediction, yet it
    was a concurrence of circumstances and the expression of a
    people taking its last gasp rather than premeditated planning...

    3) (Page 151) “I was present at the session and was profoundly
    moved in the face of the attitude of the French delegation and
    that of the Little Entente. They believed that they now had
    Germany financially by the throat and that her utter ruin was
    only a question of weeks. Our Foreign Office recognized the
    situation. Yet after a discussion with Henderson I ask myself
    whether he really did recognize the abyss which was gaping
    before us...”

Perhaps one certain passage might be of interest, on Page 38, under (4):

    “I also name the general staffs, because there is no greater
    illusion than that they, taken as a whole, are in favor of war.
    I know the general staffs of many countries very well, and have
    never known any general staff which would have glorified war or
    would have wished for war. They knew too much about it. If they
    advocated strength, it was because they believed in the idea
    that armed strength can prevent war.

    “In opposition to the bloodthirsty pacifists who reject modern
    weapons, but who immediately clamor for their presence on the
    battlefield when one must resist attackers... This leads to the
    conclusion that armaments are not the main reason for wars. The
    history of the years 1926 to 1931 is not that of a race for
    rearmament, but that of a slowly developing deterioration of the
    international situation because of the economic and political
    chaos, which made disarmament impossible and rearmament
    unavoidable...

    (Page 222) “The Germans actually repeated their successful
    tactics in circumventing treaties, the very tactics they had
    used in Napoleon’s time. And yet, one wonders what other
    honor-loving nation in the same circumstances would not also
    have done its utmost to circumvent a treaty which had been
    forced upon it at the point of the bayonet...

    (Page 232) “The following 6 months brought Germany’s return,
    Hoover’s failure and that of the French plans, and the complete
    change in the atmosphere through Hitler’s seizure of power.
    However dreadful this was for the peace of the world—the other
    powers, above all France, have only themselves to blame for
    it... We should have exerted more pressure upon the French and
    made greater efforts to keep a moderate government in office in
    Germany.

    (Page 256) “...they felt they were still being treated as
    outlaws...”

I would like to ask that these opinions of the British general which, as
I already said, had the approval of the Foreign Secretary, Mr. Anthony
Eden, be taken into consideration. In this connection I want to refer
also to the statements by the following statesmen: Paul Boncour,
Henderson, Briand, and Cecil; these statements were submitted by Dr.
Schacht’s defense (Schacht Document Book Number 3, Exhibit Schacht-12)
on the same subject matter and were accepted by the Tribunal; I also
want to refer to the book by Viscount Rothermere: _Warnings and
Predictions_ (Page 100).

In examining and deciding whether the Defendant Keitel knowingly
violated the military clauses of the Treaty of Versailles in the meaning
of the Indictment, the Tribunal will have to consider the facts which
have been presented. Individual charges against him on this point have
not been made.

It is unquestionable that from 1933 on rearmament took place in the
Reich. The Defendant Keitel has admitted that, and he stated that in the
official positions he held up to 30 September 1934 and from 1 October
1935 on he participated in this rearmament in accordance with the
functions incumbent on him. Like everything the Germans do, the
rearmament too was well thought-out and organized. The Prosecution
collected data for that; especially Document Number 2353-PS and the
transcripts of the sessions of the Reich Defense Committee.

During the hearing of evidence the total picture of this period from
1935 to 1938 was not clearly defined. The Prosecution arranged its
presentation of evidence retrospectively and drew a conclusion from the
results of the war as to the motive for the rearmament, but at the same
time it deduced from the fact, which cannot be denied and has not been
denied, that this rearmament could not have been planned and carried out
by any one man, that it constituted a joint plot for the purpose of
aggressive war.

Now, where is the decisive criterion: in military armament or in other
preparations for war from which the conclusion may be drawn that these
measures have an aggressive character, that is to say, that they aim at
an aggressive war? In principle, from armament itself nothing can be
deduced as to the alleged intentions; armament may, in fact it must,
look just the same if carried out for security and defense as it would
if applied to aggressive war. Therefore, if the intention of rearmament
for the purpose of a plot is to be determined, distinction must be made
between:

(a) Armament and preventive measures which must be taken in case a
mobilization should become necessary for defense at any time;

(b) Rearmament and enacting of measures which exceed, in quantity or
quality, the volume under (a) to such an extent that the intention of
the political leadership to begin a war will be recognized by those
concerned, in which case the political question of whether an
aggressive, defensive, or preventive war is intended may be disregarded.
Therefore, in the end, the decisive question will be whether in
connection with these measures the intention of planning for an
aggressive war was expressed or had become otherwise noticeable, or
whether the measures, because of their nature and volume, demand the
conclusive deduction that an aggressive war was being prepared.

In retrospect, the events are presented as the logical chain of a
development according to plan. In reality, not only Hitler’s
far-reaching intentions and his planning were subject to an actual
course of events in which, objectively viewed, a certain causality seems
to be inherent, but the knowledge and approving support of co-operating
circles were equally subject to this. There can be no dispute over the
statement that the economic capacity of a country, which in its totality
must be regarded as armament for the case of war, will eventually get to
a point which must be considered of decisive importance in solving the
question of when the rearmament, that is, the status of the entire
industry essential for war, exceeds the capacity of armament for
defense.

While considering this, it must be taken into account, especially for
the Defendant Keitel as a soldier, that until he took over the office of
Chief of OKW on 4 February he had not held an important position.

Now, what part did the Defendant Keitel play at that time,

(a) In the field of rearmament with regard to material and personnel;

(b) in the field of administrative and—as charged by the
Prosecution—military-political rearmament as dealt with under the
heading of the Reich Defense Council?

I shall now skip Pages 43 to 46, since they contain the historical
development of the organizational principles, and I beg the Tribunal, if
it can make use of this information, to consider it in reaching a
verdict. I shall continue on Page 47.

When on 1 October 1935 the Defendant Keitel became the Chief of the High
Command of the German Armed Forces in the Reich Ministry of Von
Blomberg, there was a Military Economy Branch headed by Colonel Thomas.
He was appointed by Von Blomberg as an expert adviser for the
organization.

This Military Economy Branch, later called the Military Economy Staff,
as a ministerial service post had to represent the Reich Minister of War
with the competent and authoritative economy posts, later also with the
Plenipotentiary General for Economy (GB), nominated in 1935. The
Minister of War, Von Blomberg, generally communicated directly with
Thomas at the time when Field Marshal Keitel was Chief of the Armed
Forces Department.

To clarify the part Keitel had in the organizational development of
rearmament in this period, I would explain the following:

I. The position at the start in 1933 (for the period 1933-38) was as
follows: Lack of any kind of basis for production as a consequence of
the destruction of the armament industry following the Treaty of
Versailles.

Consequence: no capacity for production, no motor vehicles, no
mechanical equipment, no offices for construction, no experience.

Thus, the first stage for rearmament: the restoration of a basis for
production, and equipment and reconversion of factories.

II. Basic initial factors to procure armaments:

(a) Branches of the Armed Forces, in Issuing orders to firms through
their ordnance offices as purchasing agents, were handicapped by budget
means and their incorporation in the budget year.

Consequence: Subsidizing of firms for lack of long term orders and
through the impossibility of calculation.

(b) War Economy Office in the OKW as the central organizer and
representative of the producer firms through War Economy (later
Armament) Inspectorates as intermediary offices in the military area, to
serve the branches of the Armed Forces as executive. Duties of the
organization, which was run by a military staff:

(1) To gain information about and recommend firms to the military
branches.

(2) To adjust the orders of the military branches to the capacity.

(3) To provide for the allotment of raw materials, machinery, and
manpower.

(4) To further the extension and capacity of industrial plants.

(5) To protect the plants from bad investments, air raids, espionage, et
cetera.

(c) The Plenipotentiary for Economy, GBW, as from the autumn of 1935 was
the declared organizer of the entire German economy for its mobilization
in case of war and its prospective leader during a war.

His duties in peacetime were preparatory only:

1. Statistical co-ordination of the individual industrial and economic
branches, including the armament authorities connected with the OKW, and
the War Economy office under Thomas.

2. Provision and storing of raw materials obtainable by importation
only.

3. Procurement of foreign currencies for importation.

4. Financing of domestic rearmament.

5. Planning of reconversion of the entire economy to war needs, and
extension of the special armament industry.

6. Duties as mentioned already under II (b), (3), and (4), together with
the War Economy office in the OKW.

In addition to this, but planned to take effect only in case of
mobilization, there was collaboration with the following subordinate
ministries: a) Ministry of Economics, b) Ministry of Food, c) Ministry
of Labor, d) Ministry of Finance, for foreign exchange and purchase of
raw materials, e) Ministry of Forestry.

This necessitated, from December 1935 onward, the participation of a GBW
deputy for purposes of information in the Belch Defense Commission.

After Dr. Schacht’s retirement from the Reich Ministry of Economics, the
GBW became only fiction, because the full powers had been transferred to
the Four Year Plan, that is to say, Göring. Only when the powers of the
ministry of armament and munitions were extended in August 1943, when it
became known as the Ministry for Armament and War Production, was there
a revival of the originally planned position of the GBW entailing full
powers in time of war, but he remained subordinate as regards
organization to the Four Year Plan, with the Führer as the general
authority in reality at the top, owing to the failure of the Four Year
Plan.

III. In collaboration of the GBW with the War Economy Office in the OKW
the “Mobilization Plan for Rearmament” had been set up, with General
Thomas presiding. This “Mobilization Plan for Rearmament” acted on
behalf of the Armed Forces and the GBW who supplied particulars of the
industrial plants to be assigned from general production for
reconversion to armament production in time of war. It was to attend to:

(a) labor requirements, (b) raw material requirements, and (c)
industrial equipment (special machinery for weapons, et cetera).

The prerequisite of modern warfare is not so much the exploitation and
organization of the manpower of a country into military formations, but
it is essentially a problem of industrial capacity and of its
appropriate utilization for the production of all necessary raw
materials. This process must of necessity precede any rearmament, and
requires expenditure of money and, even more, of time.

When Germany proclaimed her equal rights as regards defense—that is,
military sovereignty—she did not possess the necessary resources for a
material rearmament, as they had been taken away in the execution and
recognition of the disarmament plan. It has been confirmed here during
the Trial by various sources that first 10, then 7 to 8 years were
allowed and anticipated for providing material equipment in the form of
hitherto prohibited modern weapons and supplies, especially including
munitions, for the peacetime Armed Forces which had been announced to
the world with the proclamation of liberty for national defense in 1935.
This becomes comprehensible if one considers that even the U.S.A. with
its unlimited means, which were not impaired by the effects of war,
required 4 to 5 years for the necessary conversion and rearmament in
this war. Thus we see that rearmament, if it is intended to exceed the
limits of defensive armament, can only be achieved gradually in the case
of nations, which—like Germany in 1934—had no armaments.

First stage:  Procuring of essentials with regard to industries and raw
              materials for the production of war supplies.

Second stage: Placing of orders with the armament industry for the first
              equipment of the peacetime strength of the Armed Forces and
              execution of these orders within the framework of the means
              provided by the annual budgets.

Third stage:  Procurement of the munition and weapon supplies to be stored
              for the equipment of a mobile Armed Forces which would be
              developed, in the case of war, from the permanent peacetime
              strength in accordance with the manpower capacity of a
              nation. Those supplies would include the necessary
              replacements during the war.

If one considers that in 1934 Germany had no modern weapons, no
submarines, and no military aircraft at her disposal, it can well be
believed that any reasonable soldier had to assume under the given
circumstances there could be no thought of a war, let alone a war of
aggression.

Accordingly, the tasks which the Defendant Keitel assumed in his
official capacity of Chief of Staff of the Armed Forces Department must
be considered as purely preparatory and organizational. Keitel, of
course, bears the responsibility for General Thomas, Chief of the
Defense Economy Staff. The technical details and the extent of his
activity can be seen from Document 2353-PS, which is correct in essence
despite the fact that Thomas, in the declaration prefixed to this
historical document, now wants it to look as if he had presented his
original notes in an exaggerated way and given them a more favorable
turn to please Hitler and avoid arrest. This does not correspond to the
facts. What Thomas wrote proves, according to the Defendant Keitel’s
opinion, that a “war armament” with mobilization of the industrial
capacity and its conversion to war economy did not begin until early in
October 1939. It further proves that the statements of the defendants
who were examined here, as far as they were connected with this
rearmament, and especially those of Dr. Schacht until 1937, are in
complete agreement on the following point: At this period wars of
aggression were not avowedly desired, and that in the light of the state
of actual armament they must have appeared impossible.

But rearmament in manpower also shows the same picture during this
period. The evidence has demonstrated that up to the spring of 1938 only
27 peacetime divisions were scantily equipped and that 10 or 12 reserve
divisions were in preparation; at that time the Wehrmacht had no other
supplies or armaments at its disposal. If despite this fact, and
operating without general mobilization, it succeeded by the autumn of
1938 in preparing an army of almost 40 divisions for the aggression
against Czechoslovakia, at a time when it had the poorest protection on
its western border, one can see what the maximum war potential was in
those days.

Under such circumstances, and with knowledge of the armament situation
and war potentials of neighboring countries which were mutually united
by alliances and assistance pacts, none of the generals of the old
school could ever think of bringing about a war. The fact that already
one year later, in 1939, the state of German armaments was substantially
improved, must primarily be attributed to the occupation of
Czechoslovakia. Finally it must be pointed out that during this period
there was no strategic plan for any aggression whatsoever. General Jodl
has declared on the witness stand that when in 1935 he came to the Armed
Forces Department, no plan nor anything similar was in existence, except
what was provided for in case of internal unrest. The occupation of the
demilitarized Rhineland zone was not planned, but was improvised by
Hitler. The _Initial Assembly and Combat Directives_ of June 1937 is a
general instruction for possible military conflicts.

For the sake of completeness I must also call attention to Document
EC-194. This is an order issued by the Commander-in-Chief of the Armed
Forces, Von Blomberg, on the subject of aerial reconnaissance and the
observation of submarine movements during the occupation of the Rhine.
Keitel signed and forwarded this order. It is the only existent document
of that period.

The Reichswehr had a permanent force of 100,000 men, as had been laid
down by the Treaty of Versailles. It is indisputable that in view of the
size of the Reich, its unprotected borders and the way East Prussia was
cut off, this figure was absolutely inadequate for creating a feeling of
internal security and the possibility of defense in the face of an
attack from the outside world—an elementary right for any country and
nation. This state of inadequacy, which had been created by the military
clauses of the Treaty of Versailles, was the subject of reflection even
before 1933 with a view to improving it without actually making use of
soldiers for the purpose. An examination was made and it was found that
in case of mobilization a series of tasks could be taken over by the
civil ministries. Here tasks of a purely defensive nature were
concerned, which cannot be considered aggressive. They were tasks of
national defense, and principally the following: I have enumerated them
in my manuscript and, without reading them, I would like the High
Tribunal to take judicial notice of these points. As it is quite clear
these are matters for defense only.

    (1) Protection of the frontiers by reinforcement of the customs
    service;

    (2) Postal security by Reichspost agencies (repeater offices);

    (3) Railroad protection by Reichsbahn personnel;

    (4) Laying of cables instead of overhead telegraph lines;

    (5) Construction of railroad viaducts and elimination of level
    crossings on main traffic roads;

    (6) Construction of frontier fortifications in the East,
    Oder-Warthe line, Pomeranian line, Oder line (terrain
    expropriation);

    (7) Improvement of maritime traffic with East Prussia and of
    rail transit through the Corridor;

    (8) Fortifications in East Prussia;

    (9) Reinforcement of frontier protection in East Prussia;

    (10) Preparation by the Reichsbahn of mobile loading ramps;

    (11) Reinforcement of the coastal customs service;

    (12) Development by the Reichspost of the radio network
    (amplified transmitters and receivers);

    (13) Manning of permanent army signal stations with Reichspost
    personnel;

    (14) Relieving the Reichswehr from the charge of detaching
    soldiers for duties which can be carried out by civilian
    personnel;

    (15) Protection of frontier crossings by the local authorities
    (Landräte);

    (16) Co-ordination of motor vehicles, et cetera.

The advisory body for these tasks and their execution was, up to 1933,
the Committee of Experts. It consisted of experts coming from the
different civil ministries, who after being accepted by the Minister of
the Interior—Severing, up to the end of 1933—met for conferences at
the Reich Defense Ministry. The Reichswehr Minister charged the then
Colonel Keitel to direct these meetings. At these meetings the experts
received and discussed the desires of the Reich Defense Ministry as
regards the afore-mentioned tasks, which the individual ministers could
take over in case of a mobilization.

During Minister Severing’s time this co-operation worked without
friction with the idea of satisfying as far as possible the wishes of
the Reichswehr Minister, and it continued in the same way after 30
January 1933. The scope and content of the tasks remained the same.
When, on 4 April 1933, a Reich Defense Council was established by a
resolution of Hitler’s new Reich Government, the committee was retained
and only its name was changed: The Committee of Experts became the Reich
Defense Committee. However, it did not change its field of action and
was not given any new jurisdiction. It only grew in size as it went on
developing, especially after the introduction of compulsory military
service. Now, as before, the Reich Defense Committee was a body which
had to give advice about those tasks of national defense concerning the
civilian sector which had to be prepared and also partly taken over by
the civil ministries. For this Count of the Indictment it must be made
quite clear that after 4 April 1933 Keitel’s position did not change
either, and especially that he was not a member of the Reich Defense
Council.

The Reich Defense Council, which has taken up a lot of space in the
statements of the Prosecution, may be considered as virtually
nonexistent in the light of the evidence produced—later on I will come
back to the time after 1938. In any case the Prosecution could not prove
that there was any session of the Reich Defense Council during this
period. The minutes submitted dealt without exception with the sessions
of the Reich Defense Committee, and the members of this committee
reported to their competent ministries, who in turn had an opportunity,
within the framework of the cabinet, to translate into concrete form the
suggestions and proposals discussed in the Reich Defense Committee. Thus
there were never any sessions of the Reich Defense Council whose
existence was merely formal, so that witnesses could rightly say that
the Reich Defense Council existed only on paper.

Keitel, up to 30 September 1933, as colonel and section chief in the
Reich Defense Ministry, and later from October 1935 as major general and
Chief of Staff of the Armed Forces Department in the Reich War Ministry,
was a member of the Reich Defense Committee. Therefore, from 30
September 1933 to 30 September 1935 he was not in the War Ministry, and
thus had no function connected with this Count of the Indictment.
Neither did he during this time participate in sessions of the Reich
Defense Committee, the minutes of which have been presented by the
Prosecution as having special probative value. The session of 22 May
1933, described as the second session of the working Committee of
Experts, was the last session in which Keitel participated before being
transferred to serve with the troops. The first session after his
transfer to the Reich War Ministry was held on 6 September 1935. It is
put down as the 11th session of the Reich Defense Committee. Although in
the examination of Keitel’s responsibility one has to exclude the work
done by the Reich Defense Committee during the two years between
sessions 3 and 10, I will nevertheless make it the subject of my
statements, as it is from these very minutes that one can see what the
Reich Defense Committee was doing.

Only the knowledge of these minutes makes it clear why an institution,
which in this or some other form exists in every country and which
serves the purpose of national defense as deemed legitimate by every
country, has now been presented as an important factor in submitting
evidence on plans and preparations for aggression.

The minutes of the sessions of the Reich Defense Committee in 1933,
1934, and 1935 reveal the character of the work as that of preparations
for the event of war. But it is likewise evident that it is a question
of preparations intended to bring about a more perfect degree of
readiness in national defense in case of mobilization. If the “political
situation” is twice mentioned, these allusions indicate the fear of
military sanctions from neighboring states. (Reference is made to the
case of Abyssinia, which led to sanctions against Italy.) Everything is
rooted in the thought of overcoming that state of military impotency
which made it impossible to safeguard the open frontiers of the Reich.

The recurring idea of obligation to secrecy can only be attributed to
fear arising from the situation at the time lest the revelation of
measures, however defensive, might produce preventive measures on the
part of the victorious powers.

That these suspicions were well-founded is shown by the intransigent
attitude of certain states after the complete disarmament of Germany,
and this question is important for Keitel’s attitude, for he affirms
that the conclusion drawn from the obligation to secrecy, namely, that
secrecy is a proof of bad conscience, and bad conscience is a proof of
knowledge of illegality, is erroneous.

The Reich Defense Committee never passed resolutions; it was an advisory
body on matters of national defense insofar as the civilian sector was
concerned with mobilization. At no time did it ever indulge in
deliberations concerning rearmament as regards manpower or material, or
concerning plans of aggression. The Prosecution has tried in one
instance to show that the Reich Defense Committee was involved in plans
for aggression.

I do not wish to read the next few sentences. Here we deal with the
well-known event of freeing the River Rhine for traffic, a question
which was designated as the technical liberation of the Rhine River.
This came up in Göring’s testimony.

They pointed out Document Number EC-405, the minutes of the Committee
for Reich Defense, session of 26 June 1934, in which there is mention of
“participation in preparing mobilization.” In these minutes under (c)
can be found: “Preparation for the liberation of the Rhine.” From this
the prosecuting authorities have drawn the conclusion that already on 26
June 1934 the Reich Defense Committee was contemplating the “liberation
of the Rhine.” The witness Reich Marshal Göring has stated during his
hearing that, given the unequivocal wording of the German text, it is a
question here of the technical freeing of the river Rhine, but not of
any strategic or political matter. I am mentioning this manifest error
by the prosecuting authorities, which can only have occurred through a
gross mistake in translation, because it has led to an erroneous
conception of the prosecution as to the competence of the Reich Defense
Committee, and because it is the only case which has come up in
connection with this complex.

The true nature of the Reich Defense Committee’s activities is set out
quite simply and clearly in the _Manual of Mobilization for the Civilian
Administration_; Documents 1639-PS and 1639a-PS. It refers to the result
of discussions between all the experts of the Reich Defense Committee,
and is an appendix to the mobilization plan of the Armed Forces as well
as to that of armaments.

These three mobilization plans all taken together form the basis of your
decision. You may see from them whether the Prosecution is right in its
assumption of a total planning for aggressive war, or whether the
Defendant Keitel was right when he stated during his hearing:

    “What has been discussed and planned here is what every country
    is entitled to do and what the responsible agencies are bound to
    do, if they do not wish to violate their most sacred duty,
    namely the safeguarding of the security of their country.”

The decision of 4 February 1938 was fateful for General Keitel as well
as for the German Wehrmacht: for Keitel who could not yet form an
opinion on the newly-created office of the “High Command of the Armed
Forces” (OKW) for the Armed Forces which on that day lost its relative
independence.

Hitler broke down the last barriers between himself and the Armed
Forces—the nation in arms—by removing both the Commander-in-Chief of
the Armed Forces and the constitutionally responsible Reich War
Minister. This truly portentous decision was fatal for Keitel and the
German nation, though at the time of its occurrence this was not
realized by the participants. That they must be blamed for not realizing
it is easy to say now, in retrospect.

At the time everybody who was not an inveterate skeptic or pessimist had
to base his judgment on the development of things in general and on the
strength of the personalities involved. Neither the one nor the other
could be clearly appreciated on 4 February 1938.

It was not a personal decision of the Defendant Keitel who did not know
Hitler personally in these days and who met him for the first time man
to man in the preliminary discussions. Hitler assigned him to the
newly-created office of Commander-in-Chief of the Armed Forces and
Keitel accepted it. Even if we disregard entirely the human emotions
connected with such a brilliant promotion there was no reasonable ground
for the then Chief of the Armed Forces Department in the Reich War
Ministry to decline the offer, since Von Blomberg himself had
recommended him. Hitler’s ideas about this office could not be discerned
by Keitel. I shall pass to the next page...

The decree gave Keitel a wonderfully impressive office name as “Chief of
the High Command of the Armed Forces.” The historical foundation is the
elimination of the commanding authority over the entire Armed Forces,
which up to 4 February 1938 was in the hands of Field Marshal Von
Blomberg, and on that day was taken over by Hitler himself. Hitler
created at the same time the responsible Ministry of War, which up to
that time had also been administrated by Field Marshal Von Blomberg. Dr.
Lammers says the following about the origin of the Führer’s Decree of 4
February 1938: (Morning Session of 8 April 1946; Volume XI, Page 29.)

    “The Führer informed me that the Reich Minister of War, Von
    Blomberg, is resigning his office and that he avails himself of
    this opportunity to make some other changes in the Reich
    Government, particularly since the Foreign Minister, Von
    Neurath, is going to retire, which will make a change; there is
    also a change in the High Command of the Army. In this
    connection the Führer gave orders for a decree to be worked out
    regarding the Command of the Armed Forces. It was to be merged
    with the Ministry of War. As a directive the Führer gave me the
    following instruction:

    “In the future I shall not have any War Minister; neither will I
    have in the future a Commander-in-Chief of the Armed Forces to
    stand between me, as the Supreme Commander, and the other
    commanders-in-chief within the Armed Forces.

    “In accordance with this instruction the decree was formulated,
    by which the High Command of the Armed Forces was established as
    an Army Staff directly subordinate to the command of the Führer.
    The Führer did not want any independent office in this function,
    inserted between himself and the commanders-in-chief of the
    Armed Forces branches. In consequence, General Keitel, now
    appointed Chief of the High Command of the Armed Forces, had no
    independent commanding authority over the different branches of
    the Armed Forces. Such authority would not have been considered
    for other reasons as well.”

Field Marshal Von Blomberg declares in the affidavit I have submitted:
To Question 24:

    “At our last discussion Hitler pointed out that he presumably
    would not fill my position again, and that he would thereby
    become himself the real Supreme Commander of the German Army...

    “He asked for a suggestion for the assignment of a _Chef du
    Bureau_ who would direct and carry out current tasks under him
    and thus under Hitler’s responsibility.

    “I named Keitel, who, under me, had administered this office
    very capably.”

In answer to Question 27:

    “I proposed Keitel as _Chef du Bureau_, believing that I had put
    him in the right job.”

In such a position he would not be a military adviser to Hitler. Whether
and in how far Hitler ever asked for his advice, I do not know. Even so,
Keitel’s responsibility, in my opinion, would not thereby be
established.

Question 29:

    “Was it not Hitler’s intention to create a tool for himself in
    the person of Keitel, whose capacity for organization and hard
    work seemed to him valuable, as an executive organ for his
    decisions and orders?

    “Answer: This question is emphatically confirmed by me. Hitler’s
    original intention at that time was most certainly to have at
    his disposal a trustworthy subordinate organ, and in no way an
    adviser endowed with any responsibility.”

The decree of 4 February 1938 regarding leadership in the Armed Forces
is known to the Tribunal. Therefore, I do not need to read it to you.
One sees from this and from the hearing of witnesses regarding the
position of the Defendant Keitel and questions of his competence and
responsibility, that:

(1) Hitler did not want either a responsible War Ministry or any other
person but himself to exercise the commanding authority over the entire
Armed Forces. He united in his own person both these institutions by
declaring that, in regard to the commanding authority, he would from now
on exercise this directly and personally, as well as the functions of
the Reich War Ministry which were to be administered by Keitel under his
instructions.

(2) Hitler thus created a military staff for a military-technical
program. He designated it the High Command of the Armed Forces. This
“Oberkommando der Wehrmacht” was therefore nothing more—and, I may add,
no less—than the military chancellery of the Führer and Supreme
Commander. Such chancelleries already existed as Reich Chancellery,
Presidential Chancellery, and Party Chancellery. The Defendant Keitel
was assigned to the post of chief of the military chancellery with the
title of Chief of Staff of the High Command of the Armed Forces (for
short, Chief OKW).

(3) Hence it follows that the OKW was not intended to be an intermediary
agency between the Supreme Commander of the Armed Forces and the three
Armed Forces’ sections. The assumption to the contrary held by the
Prosecution, which is based on a graphic representation, is founded upon
an erroneous opinion.

An independent intermediary level between the Supreme Commander and the
three Commanders-in-Chief of the Army, Navy, and Air Force such as
existed before 4 February 1938 no longer existed. The OKW, in which the
Defendant Keitel was the Chief of Staff, was no independent military
agency or authority, but exclusively Hitler’s military-technical staff
and his War Ministry office. The OKW had no independent authority
whatsoever, neither the power to issue orders nor the command authority.
Therefore, the OKW could not issue its own orders. On the contrary, all
instructions, decrees, general directions, or orders issued by the OKW
were the expression of the desires of the Supreme Commander of the Armed
Forces. The Commanders-in-Chief of the three Armed Forces’ branches were
always aware of the fact that no intermediary level existed between them
and the Supreme Commander, and they never considered or recognized the
OKW as such. This is confirmed by the affidavits of the Codefendants
Admiral Dönitz and Admiral Raeder, as well as by the testimony of Reich
Marshal Göring and Dr. Lammers.

The idea that the OKW, or the Defendant Keitel as Chief of the OKW,
would have had authority to issue instructions or orders independently
is therefore erroneous. All official business, oral or in writing, which
went beyond an exchange of ideas with other military agencies or
authorities, was subject to the exclusive decision of the Supreme
Commander himself. The OKW was merely the executive staff of the Supreme
Commander.

(4) Therefore, when documents issued by the Supreme Commander or by the
OKW show signatures or initials of the Defendant Keitel, or of a chief
of office or section chief, one must not draw the conclusion that the
persons concerned had authority to issue orders independently. In each
instance it was merely a case of noting, forwarding, or transmitting the
orders of the Supreme Commander himself. Because of the demands made on
Hitler’s time in his positions as head of State, Reich Chancellor, Party
Leader, and Supreme Commander of the Armed Forces, it was not always
possible to obtain his personal signature, unless it concerned
fundamental matters of unusual significance. It must be noted that in
all cases Hitler’s personal decision or approval had to be obtained.

Such being the state of affairs, we cannot accept the Prosecution’s
argument that because the Defendant Keitel signed or initialed documents
he is co-responsible for their actual contents. It would be arbitrary to
infer the responsibility of the Defendant Keitel as chief of the
military chancellery because he forwarded or signed orders,
instructions, and so on, a responsibility which in my opinion can be
charged only to the person who promulgates the order by virtue of his
authority.

A real responsibility for this could be laid upon the Defendant Keitel
only in case it were proved that he willfully participated in drawing up
these orders, instructions, et cetera.

THE PRESIDENT: Dr. Nelte, would that be a convenient time to break off?

                        [_A recess was taken._]

M. CHARLES DUBOST (Deputy Chief Prosecutor for the French Republic):
Gentlemen, Counsel for the Defense have presented a request to the
French Prosecution to have certain documents communicated to them. This
request is divided into two parts.

The first part concerns the Scapini incident, which arose from the
publication of a document in the course of my own statement. I am able
to communicate to the Defense the answer which the French Government has
made to its request.

The French Government has found in the archives left behind by the
German authorities the answer which was made to the protest raised at
the time of the massacre of French prisoners. It is, by the way, a
purely dilatory answer. The German authorities replied that the
Armistice Commission was not competent; that the request must be made by
the Scapini Embassy. I have handed this document to the Defense and I
think that the incident is closed.

The second part of defense counsel’s request concerns a statement made
by my colleague, M. Edgar Faure, who at the beginning of his speech
announced to the Tribunal that he had examined approximately 2,500
documents, of which he had retained only 200. I can, of course, not
answer on behalf of M. Edgar Faure. I only know that the French
Delegation has only a total of 800 documents in its archives, and has
submitted them all to the Tribunal and to the Defense. I therefore think
that it is merely oratorical hyperbole and that my colleague wished to
allude to covering letters which were of no importance. In any case, I
had previously informed defense counsel Dr. Nelte that all the documents
of our delegation were open for him to see and that he would be able to
verify that we had no other documents than those which we had published.

On the other hand, the requests which we forwarded to Paris to have
complementary documents which might have been forgotten sent to us have
all been in vain. We therefore conclude that we have here all the
documents which we could make use of in this Trial.

DR. NELTE: Mr. President, I am grateful to the French Delegation for the
explanation given now regarding the complaint I made this morning. If I
had had that explanation a few days earlier, what happened this morning
would not have occurred. I regret it very much indeed.

I continue on Page 64 to the effect that Keitel co-operated in drawing
up orders. In order to clarify this as much as possible I would like
furthermore to point out the following:

The “instructions,” which were of fundamental significance for the
planning of military operations, are operational orders issued to the
Commanders-in-Chief of the three Armed Forces’ branches by the Supreme
Commander in this capacity. Before these instructions were drawn up
Hitler discussed the military-technical aspect of each order with the
competent OKW experts and also with the Defendant Keitel. The
instructions, aside from opinions manifested by the individual experts,
were exclusively the expression of the Supreme Commander’s wishes, and
they were not directed to the OKW but to the Commanders-in-Chief of the
three Armed Forces’ branches, to whom they were forwarded through the
OKW. The three Armed Forces’ branches on their part ordered, on the
basis of the general instructions, the details incident to their
execution. Therefore, I shall not refer in this connection to the
statement of the Charter according to which the carrying-out of orders
is not accepted as a ground for exemption from punishment. For the
transmission of the order was not an order issued by the OKW to the
Armed Forces’ branches, but the forwarding of the expression of the
wishes of the Supreme Commander of the Armed Forces. The order directed
to the OKW, if you will, referred in all cases to the elaboration of
some desire expressed by the Supreme Commander and to the purely
external act of transmitting the finished idea without having authority
of expressing an opinion thereon. It must be assumed that the
Prosecution, perhaps influenced by the defendant’s rank of Field
Marshal, did not appreciate correctly this position of the Defendant
Keitel. This rank had no relationship to the real authority of the
defendant to issue military orders. One is inclined to imagine that a
Field Marshal is a military commander. However, as we have seen, the
Defendant Keitel had no command authority whatsoever.

Field Marshal Von Blomberg, whose testimony has been submitted to the
Tribunal by the Prosecution, defines the position of the Defendant
Keitel as _Chef du Bureau_. This definition is materially correct. A
_Chef du Bureau_ has to see to it that the bureau which he directs
operates properly; that the affairs are correctly and promptly attended
to by the competent officials. But he does not participate in the final
decisions deemed correct by his superior, in this case the Supreme
Commander of the Armed Forces. If this principle holds true in general,
it is especially true here. It is known that Hitler did not accept any
advice from Keitel concerning military decisions. This has been proved
by the evidence, particularly by the testimony of General Jodl.

The Defendant Keitel has clearly outlined in Affidavit Number 8, called
“Coordination in the State and in the Armed Forces,” his activity and
that of the OKW. The affidavit gives an idea of the difficult and
thankless work of the Defendant Keitel. It consisted mainly of a
co-ordination of the desires and needs of the Armed Forces’ branches. It
consisted, furthermore, in reconciling, divergencies as they arose and
in the struggle against Hitler’s negative attitude toward any proper
procedure, that is to say, through the competent departments.

In every branch of the Armed Forces there exist interests which differ
from the interests of other branches and which cannot be entirely
satisfied; sometimes they even oppose each other. This is true
especially for the replacement of personnel, but also for the supply of
everything that is required for special warfare.

The point of intersection of all these factual and personal differences
of opinion was the OKW.

If one desires to estimate properly the incontestable fact that the
Defendant Keitel was shown hostility and was personally judged
unfavorably by nearly all sides, one must note that this fact occurred
as a necessary result of the overlapping of factually opposing interests
and personal differences of opinion, which Keitel tried to settle by
means of co-ordination or mediation, that is, in nearly all cases by
means of compromise. No particular personal experience is needed in
order to know that the objective mediator will always incur the
ingratitude of both parties. The same picture becomes evident in the
relationship to the numerous offices which were endowed with special
official authorities or which had Hitler’s favor and special confidence
for personal, mostly Party political, reasons. One must realize these
differences and overlapping interests to appreciate the heavy burden
involved in Keitel’s position and, I might add, in order to judge
correctly the significance of his position.

It is difficult to realize the special relationship between the
leadership of the Armed Forces and the political sector because the
functions of Supreme Commander of the Armed Forces, of Reich War
Minister and of head of State were from 4 February 1938 all embodied in
the person of Hitler.

Therefore, since 4 February 1938, complete accord existed between the
political leadership and the highest leadership of the Armed Forces
since both powers resided in one and the same person.

The assumption of the Prosecution that the chief of Hitler’s military
staff was closely connected with his superior Hitler and must therefore
also be held responsible for political questions, if not as the
perpetrator, then in some form as provided in Article 6 of the Charter,
is erroneous.

In this connection there is no need to enter into the hierarchy of the
Führer State and the binding character of the Führer order. The military
hierarchy is older than the National Socialist ideology; moreover it
must be stated and taken into consideration that the introduction of the
absolute Leadership Principle into the Armed Forces signifies the final
elimination of all efforts which could perhaps be regarded as democratic
in a certain sense, or in any case as a restraint on the dictatorial
appetite of Hitler. In this connection I refer to the affidavit of
Keitel, Document Book 2, Number 9, “The OKW and the General Staff.” The
rigid application of the Leadership Principle, judged retrospectively,
gradually adulterated the healthy military principle of obedience into
immoderate militarism. This found its expression, among other things, in
the prohibition of all criticism, from the highest authorities to the
lowest. I refer you to the speech made, by Hitler in the Kroll Opera
House in 1937 or 1936, also to the critical marginal note—statement of
General Winter—in the decree prohibiting applications for release on
the part of the generals in 1938, and finally to the removal of the
Supreme Commander of the Armed Forces and the War Minister.

It cannot and shall not be denied that the Defendant Keitel was
absolutely in favor of the Leadership Principle in the leadership of the
Armed Forces and that the essay “Foundations of the Organization of the
German Armed Forces” (L-211) can be regarded as a contribution to the
conduct of a future war—not, however, that an actual war was
anticipated at that time or that it was the reason for this essay.

What does this mean in regard to the Defendant Keitel? Anyone
recognizing the Leadership Principle as being militarily correct must
act accordingly. Professor Jahrreiss has stated that the Leadership
Principle, like every other political system, is not absolutely good or
bad, but that everything depends on the manner and methods used in
applying it.

Keitel has a military background and favors the Leadership Principle for
the field he knows. According to this principle the responsibility lies
completely with the one who has authority to command. While the
Leadership Principle in fact hardly underwent any change in the civilian
areas where it was also applied, though superficially, this principle
necessarily made itself felt much more strongly in the military sphere,
particularly in the relationship between the commanders-in-chief and
their chiefs of the General Staff.

Formerly the chiefs of the General Staff had been the really responsible
commanders, now they became the operational assistants to the
commanders-in-chief. In the formulation of orders they were
“collaborating advisers” in the field of strategic operations, for which
these officers had been especially trained. Keitel was neither a
commander-in-chief nor a chief of the General Staff; he was the chief of
the military chancellery under Hitler, a soldier and an administrator of
war-ministerial duties, therefore a “minister,” claims the Prosecution.

One should not refer in this Trial to formal distinctions when the real
functions give another picture. This is particularly important in the
case of Keitel. It should be determined what he actually was and how he
acted in reality.

The dual position created by the decree of 4 February 1938 has led to an
erroneous conception of Keitel’s functions. We assume that Hitler
dissolved the Reich War Ministry because he no longer wished to have a
War Minister; in spite of the fact that on 4 February 1938 a
considerable number of functions up to then handled by the Reich War
Ministry had been assigned to the individual Armed Forces’ branches,
there were a number of functions which had to be retained and
administered in the OKW.

But taking into account the idea of an intended strict concentration of
functions pertaining to the conduct of the war, Keitel was unable to
deal even with those on the basis of complete authority and according to
his own judgment, but had to present the demands of the Armed Forces and
co-ordinate the Armed Forces’ affairs with the tasks of the other
ministries.

It cannot and will not be denied that this concentration of duties in
the person of Hitler was impracticable. Thus, a huge amount of
preparatory and executive work rested with Hitler’s military staff,
whose Chief of Staff was Keitel. Hence, it was also responsible,
although not with reference to important questions, especially those of
a fundamental nature. It was, of course, a matter of judgment to what
extent the Defendant Keitel considered matters essential and fundamental
and submitted them. But the evidence showed that when in doubt about
matters, after conscientious examination, Keitel was inclined to present
them rather than to make his own decision about them.

The sources from which Hitler obtained his news, through Himmler,
Bormann or some other way, were so intricate that Keitel had no way of
knowing whether Hitler had the information that seemed to him to be
important. To avoid the unavoidable discussions afterward with Hitler
who, being distrustful of everyone, always took it for granted that
people would intentionally conceal things from him, Keitel was anxious
not to leave himself open to the reproach of having omitted anything. A
characteristic example is the case of the mass escape of 80 R. A. F.
officers from the POW Camp Sagan.

Here the point is simply to show that Keitel in his capacity as guardian
of the actual war functions which still remained in the OKW, held no
position as a minister. Here, too, he was the _Chef du Bureau_, the head
of the military chancellery, a position which is also held by the chief
of a ministerial office, or even a state secretary. I wish to refer
again in this connection to Dr. Lammers’ statement, and to the
affidavits of Admirals Raeder and Dönitz, which I have already mentioned
repeatedly.

The text of the Führer decree of 4 February 1938 shows that Hitler also
wished to make this clear. If Hitler had not had the definite desire to
exclude everyone else from a responsible, and perhaps for him
uncomfortable function in the highest military sector, he might have
given Keitel at least the authority to take part in Cabinet meetings. In
the Führer decree in which the Commanders-in-Chief of the Army and Navy
as well as Keitel had been given the “rank” of a Reich minister, it was
explicitly ordered that both commanders-in-chief should be entitled to
take part in Cabinet meetings. The fact that this was decreed
simultaneously is a convincing _argumentum e contrario_. It proves that
Hitler did not wish to give his Chief of Staff of the OKW an opportunity
to present his own opinions and possible doubts before the Cabinet.
Hitler gave the Defendant Keitel the “rank” of a Reich minister for the
purpose of enabling him to carry on direct negotiations with the
departmental ministers. Had Keitel not had the rank of a Reich minister,
he would have been limited to conferences with state secretaries and the
like, and thus be very much handicapped in carrying out the Führer’s
orders and his tasks.

It is in error, therefore, that the Prosecution has classified Keitel as
a Reich minister “without portfolio.” He was not a minister, nor a
member of the Reich Government. State Secretary Stuckart in a document
submitted to the Prosecution has listed all members of the
Reichsregierung. Keitel is not among them; he is mentioned in this
document only as the holder of one of the highest offices.

Now, the Prosecution has not limited the term Reichsregierung to
membership in the Reich Cabinet, but considered other committees as part
of the Reichsregierung, too. It would seem, therefore, as if the
Prosecution looked upon the legal structure based on German law as
irrelevant. Pursuant to Appendix B to the general bill of Indictment,
the Reichsregierung in the sense of the Indictment is composed of:

1. Members of the regular Cabinet after 30 January 1933, the day Hitler
became Chancellor of the German Republic. The expression “regular
Cabinet” used here includes: Reich ministers, that is, heads of
departments of the Central Government; Reich ministers without
portfolio, ministers of State with the function of Reich ministers, and
other officials entitled to participate in the Cabinet meetings.

2. Members of the Ministerial Council for the Defense of the Reich.

3. Members of the Secret Cabinet Council.

Regardless of the individual responsibility of every defendant the
Tribunal must examine whether the concept of a “Reich Government” as
defined by the Prosecution is correct, that is, practical; whether, as
to the composition of this group, the Prosecution’s concept of a “Reich
Government” appears justified. In any case it is not sufficient to
accept as correct the assertion of the Prosecution in this respect.

I assume that my colleague Dr. Kubuschok will enlarge on this during his
case.

THE PRESIDENT: Dr. Nelte, the Tribunal feels that you are taking a very
long time over this question of whether Keitel was—what his exact
position was.

DR. NELTE: I believe, Mr. President, that the Prosecution also took a
great deal of time to make clear what position Field Marshal Keitel
occupied in their opinion. He is not here as Field Marshal, but as the
Chief of the OKW.

THE PRESIDENT: Well, if they have, I must confess that I have forgotten.
It seems to me and the Tribunal generally that you are taking up far too
long on this topic. You have got many other topics which are of very
great importance to the defendant, and you have already been speaking
for several hours, and you occupied a large number of pages in order to
try and define what Keitel’s position was. I thought you might be able
to cut it down.

DR. NELTE: I shall try.

I have explained that Defendant Keitel did not belong to Group 1; that
is to say, that he was not a minister.

He was neither chief of a Government department, nor a Reich minister
without portfolio, nor a state minister having the functions of a Reich
minister, nor an official who was entitled to attend Cabinet sessions.

In the hearing of evidence it was proved that despite the Führer Decree
of 4 February 1938 there never existed a Secret Cabinet Council; that
such council was never set up; that it never held a session; and that no
persons involved ever received a commission. Thus, it is proved that the
defendant was also never a member of the Secret Cabinet Council.

It is true that Keitel was a member of the Ministerial Council for the
Defense of the Reich. Witness Dr. Lammers has confirmed that the fact of
his becoming a member of the Ministerial Council for the Defense of the
Reich did not change Keitel’s official position, and especially did not
make him a minister. In his affidavit of 25 November 1945, Codefendant
Dr. Frick says that Keitel worked in the Ministerial Council for the
Defense of the Reich as “liaison man.”

Although he is not listed among the members of the Reich Cabinet,
Keitel’s capacities as a member of the so-called “Dreimänner-Kollegium”
(Three Man College) and as a member of the Reich Defense Council have
been mentioned by the Prosecution. I believe I may refer to the result
of the hearing of evidence. It was shown that a Three Man College as a
Government committee never existed, and that the Reich Defense Council,
after the unpublished Reich Defense Law of 1938, never held sessions, or
in any case that it never held conferences, or passed resolutions.

In order to clarify the Defendant Keitel’s responsibility and competence
it is necessary to analyze the concept of OKW. I ask that this statement
be not considered a theoretical and therefore superfluous discussion.
The very fact that the Prosecution makes a sweeping and fundamental
assertion...

THE PRESIDENT: Dr. Nelte, may I ask what you have been doing if you have
not been analyzing the concept of the OKW?

DR. NELTE: Up to now I have explained Keitel’s position as Chief of the
OKW. In statements on Page 74 and the following pages I wanted to
explain to you that the Prosecution, and others as well, have talked
about the OKW: and “OKW” is a word which has three different types of
significance.

Mr. President, if you will be good enough to permit me to submit this in
its written form, and if you would consider it as having been presented
in Court, then I am willing to leave out the pages up to 77 and submit
them to you. In any case, it appears to me to be an important part of
the explanation regarding the interpretation of the word “OKW,” and the
fact that this is not identical with Keitel is particularly important.

May I do that?

[_The President nodded his assent._]

In that case, then, I shall continue at Page 77.

In order to clarify the Defendant Keitel’s responsibility and competence
it is necessary to analyze the concept of OKW. I ask that this statement
be not considered a theoretical and therefore superfluous discussion.
The very fact that the Prosecution makes a sweeping and fundamental
assertion, and that the French Prosecution undertakes a pointedly legal
examination of the question as to the office in which each defendant was
active with regard to the counts he is charged with, makes it my duty to
clear up a mistake made by the Prosecution. However, this mistake is all
the more excusable, because not only foreign countries but large groups
at home, even within the Armed Forces, did not know what OKW meant. It
became a popular collective term for the supreme command of the Armed
Forces without anybody taking the trouble to find out who and what was
behind the three words “Oberkommando der Wehrmacht.” This corresponds to
the law of inertia governing the association of human beings, to the
almost pathological mania to abbreviate titles of military commands.
Since, furthermore, the communiqués of the High Command of the Armed
Forces were published daily, and all announcements referring to war
events began with the words: “The High Command of the Armed Forces
announces,” not only did these words become impressed upon the public’s
mind, but also the conception that the “High Command of the Armed
Forces” was the supreme military command. The conception would be
correct had the words OKW not been translated with Oberkommando der
Wehrmacht (High Command of the Armed Forces) but rather as Supreme
Commander (Oberkommandierender) of the Armed Forces. It was Hitler
alone, as “Supreme Commander of the Armed Forces,” who was the
incarnation of what everybody imagined the OKW to be, namely, the
central military planning and command headquarters and thus the supreme
command and executive headquarters for all military matters. In this
respect the OKW was synonymous with Hitler as “Supreme Commander of the
Armed Forces,” which was his official title.

If, in naming the headquarters of the supreme commander, it was desired
to avoid the title “Supreme Commander of the Armed Forces” which was in
accordance with the prevalent Leadership Principle, the title
“Oberkommando der Wehrmacht” was bound to be used. This headquarters
comprises the supreme commander himself, that is, Hitler, and his
assistants, his staff.

The Führer Decree of 4 February 1938 bearing the heading: “Decree
concerning the Command of the Armed Forces” resulted, through the
unfortunate and vague nature of its wording, in an interpretation that
the “Chief OKW” mentioned therein was the chief in the sense of
director, of the High Command of the Armed Forces. It is true that it
follows from the decree that “Chief OKW” is to mean “Chief of Staff
OKW,” that is chief of Hitler’s bureau in his capacity as Supreme
Commander of the Armed Forces. But since then, every time that people
have spoken and speak of the OKW, everybody thinks of Keitel without
examining whether the expression means: OKW-Oberkommandierender (Supreme
Commander) of the Armed Forces, OKW-Headquarters of the Supreme
Commander of the Armed Forces, or OKW-Staff of the Headquarters of the
Supreme Commander of the Armed Forces.

The Prosecution makes no distinction in this respect, just as the German
agencies were unaware of the exact difference, or at any rate paid no
attention to it. They, just like the Prosecution now, thought it right
to claim the OKW’s jurisdiction and responsibility for anything having a
connection with the Armed Forces or members of the Armed Forces. From
this viewpoint to claiming Keitel’s personal jurisdiction by virtue of
the title “Chief OKW” there is only a short step. For Germans and
foreigners the recollection of the first World War was a contributing
factor in forming this opinion, which was not based on an examination
according to constitutional law. The relationship between Hitler and
Keitel prompted the comparison with the relationship between the Kaiser
and Von Hindenburg. This comparison had results for the Defendant Keitel
which are shown at this Trial. Without thinking of the fundamental
differences between Von Hindenburg as Chief of the Great General Staff
which existed until 1918, and Keitel as the chief of Hitler’s military
executive staff, and without knowing the field of Keitel’s jurisdiction
and what possibilities Keitel had as regards Hitler’s plans and measures
by virtue of the functions assigned to him, comparisons were made which
gave rise to doubts about him. When furthermore—after the catastrophe
had set in—Keitel once again came to play an outwardly similar part as
representative of the Armed Forces when he had to execute the signature
for unconditional surrender, this comparison also turned out to his
disadvantage. People do not ask about jurisdiction when things go badly,
but look for a guilty person and the guilty person is judged by external
appearances. Quite naturally the great attention paid to Keitel’s person
at this Trial can largely be traced to the fact that after Hitler’s
death Keitel came into the public eye.

In order to see clearly what part Keitel really played, and what share
he had in what happened, I now wish—after investigating his legal
competencies—to examine what actual influence he had upon the
development and carrying-out of the measures, the effects of which
constitute the subject of this Trial. From everyday experience we know
that it does not matter so much what a person is supposed to be in a
particular position, but what he has made of that position by virtue of
his personality. I believe I may say that in the course of this Trial
the personality of no other defendant has been judged in such varying
and contradictory ways as that of the Defendant Keitel.

Decisive for Keitel’s material responsibility is his actual position in
the tug-of-war with and around Hitler, his effective influence upon that
group, and thus on those circumstances as a whole which could have
influenced the operations of Hitler’s headquarters in the military
field.

I shall deal with this fundamental topic when taking up the charges made
by the Prosecution against Keitel and other defendants on the strength
of the cross-examination of Dr. Gisevius, in other words, after the
presentation of evidence for Keitel has been completed.

In view of the comprehensive scope of Justice Jackson’s questions and
the answers given thereto by Dr. Gisevius, the testimony of Dr. Gisevius
has become of tremendous importance in the case of the Defendant Keitel.
Had Dr. Gisevius’ statements about Keitel been true—that is, statements
made by him on the basis of information, in most instances in terms of
conclusive findings—the Defendant Keitel could not have told the truth
during the presentation of evidence. The importance of that fact becomes
evident when it is considered that a negative opinion on truthfulness
would of necessity destroy Keitel’s defense, which in its essence draws
on the subjective aspect of facts as a whole. In view of this fact and
the importance of the testimony of Dr. Gisevius also for other
defendants, it becomes my duty to explain the contrast between Keitel’s
answers and the testimony of the witness Gisevius.

Experience teaches us that dead witnesses are the best witnesses,
because their purported utterances cannot be directly refuted. Evidence
on the strength of information belongs to another group of statements
which almost defy refutation. The testimony of Gisevius combines both
possibilities, in that he bases his testimony primarily on information
obtained from witnesses who are dead. Justice Jackson used Dr. Gisevius
as star witness in his comprehensive attack on the Defendant Keitel.
After the completion of the presentation of evidence against Keitel, he
did not bring forward one individual circumstance, but an Indictment on
all Counts and a general judgment, on Keitel’s answers.

The counterevidence is concerned with proving the objective
incorrectness of facts based upon information obtained from certain
individuals and further, with establishing proof of the unreliability of
the information. I call to mind the words which the Defendant Keitel
said under oath upon completion of his direct examination by me while in
the witness box:

    “One may hold it against me that I was wrong and made mistakes,
    that my attitude toward the Führer Adolf Hitler was wrong and
    weak, but it should not be said of me that I was a coward, that
    I was untruthful, and that I was disloyal.”

I sum up in condensed form the charges made against the Defendant Keitel
during interrogation by the Prosecution, as follows:

(1) Keitel built an impenetrable ring round Hitler so that the latter
could be told nothing.

(2) Keitel failed to pass on to Hitler reports he had received from
Canaris whenever they concerned atrocities, crimes, and the like, or he
gave orders to modify them.

(3) Keitel had a tremendous influence on the OKW and the Army.

(4) Keitel threatened his subordinates, when they made political
statements, that he would not protect them; he even said that he would
turn them over to the Gestapo.

Dr. Gisevius says in one part of his statement that Keitel had no
influence over Hitler. He exonerates Hitler by explaining that Keitel
had formed a ring round Hitler, in order that the latter should be told
nothing. The British and American Prosecution in their Indictment called
Keitel a powerful staff officer who had exerted great influence over
Hitler; the French Prosecution described Keitel as a willing tool of
Hitler; the German generals called him a “yes man” who could not carry
anything through; and now Keitel grows, according to the statement of
Dr. Gisevius, into a real handyman and buffer for Hitler, who hid from
the latter anything bad, who submitted to him only what he saw fit, and
permitted no one to approach Hitler.

To assert that Keitel blocked access to Hitler, can only be maintained
by somebody who did not know the conditions prevailing around Hitler.
Before the war Keitel worked in Berlin in Bendler Strasse, while Hitler
was in Wilhelmstrasse. Keitel came perhaps once a week to report, or on
special order. At that time, on account of the distance, it was in fact
impossible for Keitel to exert any influence over access to the Führer.
It was equally impossible when Hitler was at the Berghof near
Berchtesgaden for weeks at a time, while Keitel remained in Berlin.

At the beginning of operations, Keitel was with Jodl and the Armed
Forces Operations Staff at the Führer’s headquarters. Here also they
were separated. Keitel did not sit in Hitler’s anteroom, but rather in
other buildings or barracks. He came from time to time with General Jodl
to the conference on the situation, in which, besides Hitler, some 15 or
20 officers of all three branches of the Armed Forces took part. Apart
from the conferences on the situation there was no personal contact.
When Hitler wanted Keitel for anything he sent for him. Personally and
individually there was closer contact in Berlin between Hitler and his
adjutants, the Chief of the Party Chancellery, the Chief of the
Presidential Chancellery, and the Chief of the Reich Chancellery. Keitel
not only could not decide who should see Hitler, he also could not
possibly prevent anybody going to Hitler.

Hitler’s sources of information were the responsible heads of each
department; it was occasionally not clear whence Hitler obtained his
information, as I have already stated. Gisevius did not know these
conditions from his own experience; he himself was never near Keitel,
who never saw or spoke to him and did not know his name. When he gave
his opinion here, he could only base it on information given him by
Canaris, Thomas, and Oster.

General Jodl has been heard regarding this question. He certainly is the
best witness in this matter, since he, as well as Keitel, lived in
direct proximity to Hitler and therefore could form his own judgment. He
stated concerning this matter:

    “Unfortunately, it was impossible to keep things from Hitler.
    Many channels of information led directly to Hitler.”

Upon my interrogation, at the suggestion of the Tribunal, Jodl fully
confirmed that what Keitel had testified was quite correct, and that
what witness Gisevius stated in this respect was, in general, merely
figures of speech.

The Codefendants, Admirals Raeder and Dönitz, have confirmed that the
allegation of the witness Gisevius that Keitel was able to keep the
commanders-in-chief of the branches of the Armed Forces away from Hitler
is false. If, however, this was not the case, it follows that the way
from the branches of the Armed Forces to the Führer was open at any
time. Through the hearing of witnesses it was also established that
apart from Jodl, the Chief of the Armed Forces Operations Staff, Canaris
in particular had direct access to Hitler. Thus, the accusation of the
witness Gisevius that Keitel had formed a ring round Hitler is proved
false.

The witness Gisevius has declared that reports were submitted to Keitel
by Canaris about atrocities in connection with deportations,
extermination of Jews, concentration camps, the persecution of the
Church, and the killing of insane persons, all of which Keitel withheld
from Hitler. The same is alleged about the reports of General Thomas,
Chief of the War Economy Office, the purpose of which was to inform
Hitler about the war potential of the enemy and make him listen to
reason.

Concerning Admiral Canaris’ reports, it must be said that as chief of
espionage and counterintelligence he naturally delivered regular reports
which concerned the conduct of the war, including the conduct of
economic warfare. It is affirmed that reports were submitted on subjects
which belonged neither to the jurisdiction of the Counterintelligence
Office nor to that of the OKW. It has been proved that Hitler took
strict care that every worker confined himself to his own special field,
and it was particularly forbidden for military offices to concern
themselves with political affairs.

Keitel has declared under oath that he knew nothing about the
atrocities, and especially the extermination of the Jews and the
concentration camps. This is in absolute contradiction to the assertion
of the witness Gisevius that Canaris submitted reports to the Defendant
Keitel on the above-mentioned subjects.

One can assert that reports of any kind whatsoever were delivered to
Keitel without fear of being contradicted, especially when one has no
fear that these reports will be found. For if they are not delivered
they cannot be found, because they do not exist. Now Gisevius has
declared that he collected documents from the beginning which contained
incriminating material. Is it not remarkable, under these circumstances,
that up to now none of these reports have been produced? As far as they
were available at the OKW, they have been used in the accusation and as
evidence. Can it be sufficient under these circumstances for a witness
to declare that he knows from third parties that such reports were
submitted to Keitel?

Canaris, because of his particular activity, which took him constantly
to foreign countries on personal secret errands for Hitler, had access
to Hitler at all times. He would thus have had an opportunity to go to
Hitler immediately if he had had such serious misgivings of conscience,
as Gisevius has declared he had. Why did he not do so?

Now, Gisevius, who in general has pronounced comprehensive and damning
accusations, has, luckily for Keitel, at one point of his deposition
made a positive declaration that permits of objective verification. I
quote:

    “...I believe that I have still two examples to mention, which
    to me are particularly characteristic: First, the attempt was
    made by all possible means to induce Field Marshal Keitel to
    warn Hitler against the invasion of Holland and Belgium, that
    is, to inform Hitler that the information submitted by Keitel
    about alleged violations of neutrality by the Dutch and Belgians
    was false. The Counterintelligence Office was to prepare reports
    incriminating the Dutch and Belgians. Admiral Canaris at that
    time refused to sign these reports. I request that this be
    verified. He told Keitel repeatedly that this report which was
    ostensibly made by the OKW was false. This is an instance where
    Herr Keitel did not transmit to Hitler what he was supposed to
    have transmitted...”

I have submitted to General Jodl, here on the witness stand, Document
790-PS, which refers to the case of the _White Paper_ concerning
violations of neutrality by Holland and Belgium. Jodl testified
literally, and I quote:

    “...I understand the question, and would like very briefly to
    state the facts how it was possible—if disgust does not choke
    me. I was present when Canaris came to the Field Marshal in the
    Reich Chancellery with these report notes and laid before him
    the draft of the Foreign Office’s _White Paper_. Field Marshal
    Keitel then looked it through, above all paying attention to the
    comments which Canaris had made at the request of the Foreign
    Office, namely, that the reports were perhaps still somewhat in
    need of improvement, that he should confirm the fact that a
    military operation against Holland and Belgium was absolutely
    necessary, and that, as is expressed here, a final really
    striking violation of neutrality was still lacking. Before
    Canaris had said a word, Field Marshal Keitel threw the book on
    the table and said: ‘I refuse to do this, why should I take any
    responsibility at all for a political decision? In this _White
    Paper_ there appear word for word, true and correct, the very
    same reports that you, yourself, Canaris, brought to me.’ To
    this Canaris said: I am entirely of the same point of view. It
    is, in my opinion too, entirely superfluous to have this
    document signed on the part of the Armed Forces, and the reports
    that we have here are altogether quite sufficient to prove the
    violations of neutrality which have taken place in Holland and
    Belgium.’ And he advised Field Marshal Keitel not to sign it at
    all. That is the way it happened. The Field Marshal then took
    the paper with him and I do not know what happened
    subsequently...”

Keitel did not sign the _White Paper_. Therefore in the only verifiable
case a clear proof is obtained of the incorrectness of Gisevius’
testimony.

According to the statement of the witness Gisevius, Keitel exerted a
tremendous influence on the OKW and the Army. These words, without any
presentation of concrete facts, are only a phrase in the mouth of a man
who had no contact whatsoever with Keitel. They are refuted by the
statements of Reich Marshal Göring, Admiral Dönitz, and Admiral Raeder.
Jodl has defined this statement as merely a figure of speech.

Insofar as the witness speaks of his tremendous influence on the OKW, it
must appear questionable what he really means. Naturally, Keitel as
Chief of Staff had influence in the OKW, influence which resulted from
his position, which I have already discussed. His position in relation
to his subordinates will be taken up later. The important thing,
however, is whether Keitel had a decisive and culpable influence on what
happened. That this was not the case has even been confirmed by
Gisevius, and also the fact that he had no decisive influence on the
branches of the Armed Forces; it has also been established by the
results of the testimony.

A particularly damaging charge against the Defendant Keitel was “that
instead of placing himself in front of his subordinate officers to
protect them, he threatened to hand them over to the Gestapo.”

In contradiction to this it has been established that no chief of office
in the OKW was dismissed in the years up to 1944; furthermore, until 20
July 1944, the day of the attempt on Hitler’s life and the transfer of
the judicial power in the home Army to Himmler, no officer of the OKW
was turned over to the Police. Admiral Dönitz has confirmed that the
branches of the Armed Forces and the OKW were very scrupulous in
maintaining the privileges of the Armed Forces in relation to the
Police.

The Court has also seen here how General Jodl spoke about his
relationship to the Defendant Keitel. I think this remark has a special
importance, not only because Keitel lived on companionable and friendly
terms with his official subordinate, General Jodl, during their long
years of co-operation. As natural as that may appear, the less natural
it is if one reflects that Jodl, in spite of his officially subordinate
position, in reality became more and more Hitler’s sole strategic
adviser. What this means, considering the preponderance of the
operational tasks in the war, has been convincingly demonstrated here by
General Jodl.

If Keitel accepted this without jealousy, freely acknowledging the
superiority of his subordinate Jodl in this domain, this proves that
Keitel possessed a trait of character which refutes the information
derived from obscure sources by the witness Gisevius.

The proven fact that Keitel lived on friendly and companionable terms
with his subordinate Chief of Office, Canaris, is also in contrast with
the assertion to the contrary by the witness Gisevius.

In this connection it is necessary to refer to the fact, not submitted
by Keitel but testified to by Jodl without Keitel’s consent, that the
latter supported and helped Canaris’ family after his arrest. I only
refer to this to refute the perhaps most serious personal reproach,
according to which Keitel did not behave decently toward his
subordinates and abused his superior position—which was especially
powerful in military life—even to the point of threatening them with
violence.

In reality, according to Gisevius’ evidence, Admiral Canaris not only
played a double role officially, but also with respect to the Defendant
Keitel; in exploiting the friendship shown to him he expressed a similar
attitude, whereas among his own group he openly spoke in a spiteful way
about Keitel.

Finally, in this connection reference must still be made to the evidence
of the witness Von Buttlar-Brandenfels (Session of 8 May 1946) from
which it is clear that Keitel always treated the officers of the Armed
Forces Operations Staff kindly.

The witness mentions a quarrel between himself and Lieutenant Colonel
Ziervogel on the one hand and Himmler on the other, in which Keitel, to
whom the incident was reported, immediately and energetically intervened
in writing to protect his subordinates against Himmler. The affidavit of
the Chief of Office in Canaris’ office, Admiral Bürckner, to which I
refer, testifies in the same way to Keitel’s kindly attitude toward his
subordinates. At any rate, it must be said in clarification that Keitel
many times had occasion to speak energetically to his office and
department chiefs.

I shall then continue by explaining that officers did not generally
concern themselves with politics, and that only when the situation
became worse did they make political information the subject of their
argumentation. And I add that Keitel has, in fact, defined his attitude
with words based on the assumption that the soldier in war must declare
his faith and obedience, and if Keitel ever heard anything about such
matters, he would reprimand these officers.

Dr. Gisevius himself has said here that it was strictly forbidden for
officers to concern themselves with political questions. The Defendant
Keitel has stated that Hitler several times categorically declared the
politicians were not allowed to concern themselves with military
questions because they knew nothing of them; neither were the generals
allowed to concern themselves with politics, because they knew nothing
about that either.

Hitler’s fundamental attitude in this question is shown in the decree
dating from 1936, or the winter 1936-37, by which political reports to
or for the Armed Forces were prohibited.

In logical execution of Führer Order Number 1, Hitler not only wanted an
absolute separation of the fields of activity, but also that no office
should ever be informed of the proceedings in another office. It was
only a logical consequence that Hitler strictly prohibited any
discussion of political questions by officers, and that the Defendant
Keitel, while carrying out this prohibition which he himself approved,
charged his officers, when there was reason to do so, to refrain from
such discussions.

It is obvious that this was not a question of an academic discussion of
political problems, but of an attitude revealing itself as negative
toward the position of the Supreme Commander of the Armed Forces. As
long as there were successes, there was no question of this. After
Stalingrad one could hear expressions of opinion, which at that time
were characterized by Keitel as the expressions of a weak nature.

In accordance with his fundamental attitude that a soldier in wartime
should show unconditional and natural loyalty toward his people and
fatherland as represented by the head of the State and Supreme Commander
of the Armed Forces (and to an extreme degree when reverses set in),
Keitel was actually ruthless in condemning such expressions. He did not
wish even to cause the impression that he was of a different opinion
than his superior, that he personally had fears.

I now continue at the bottom of Page 19:

Keitel did this with “words.” That does not mean that this was mere
camouflage which did not reflect his inner attitude, but it does mean
that the manner, perhaps often rough and harsh, in which the Defendant
Keitel spoke to his officers, more than once led to an officer being
punished or disciplined.

Dr. Gisevius, however, perhaps wanted to suggest that Keitel had dealt
with his subordinates in the OKW in a morally reprehensible way.

He did not know the Defendant Keitel personally and therefore cannot
give a personal opinion; he had to rely on the information of officers
who were strongly opposed to Keitel, without such opposition ever
becoming apparent. No one ever contacted Keitel to entice him to join in
the conspiracy. That is plausible since the conspirators, knowing the
character and the soldierly attitude of Keitel, could not expect any
success. Since on the other hand Keitel was completely innocent, which
does not need to be proved, the following situation results:

Keitel knew nothing of conspiratorial activities; what he did encounter
appeared in the shape of technical objections or personal remarks which
were dealt with by Keitel officially and in a cordial manner, as by a
superior of whom the subordinates say that he barks but does not bite.
On the other side the so-called conspirators had to consider everyone a
foe who was not in favor of their own aim. Every move and every word was
weighed and critically judged. As every conspirator hopes for the
success of his revolutionary activities he has to gather evidence for
the coming reckoning. This is, of course, a task for a future police
minister and home secretary.

From an impartial estimation of the facts, verified by the evidence
presented, it is shown that the accusations arising from the testimony
of the witness Gisevius are not correct. But the picture would not be
complete if light were not thrown on the personality of the witness
Gisevius by his own evidence. This judgment is made up from two factors:

(1) The career and the position of the witness.

(2) The trustworthiness of his information.

On Page 92 of my text I have stated in detail the functions Dr. Gisevius
carried out. I have not emphasized anything which, from my point of
view, might impeach him in any way for having given the evidence here
which you all have heard. I have only impartially confirmed the
following:

(a) He evaded military service through falsified papers put at his
disposal by Oster.

(b) He lived in Germany during the whole time from 1933 without
restriction of liberty, and remained in office up to 20 July 1944.

(c) He was an official of the German Reich and was in its pay from the
middle of 1937 to the beginning of 1939 with the exception of leave.

(d) He was Vice Consul of the Reich in Switzerland from 1943 in the
Consulate General at Zürich, placed there through Canaris as
intelligence agent, and was naturally paid for it. At the same time he
was in touch with the enemy’s intelligence service.

(e) He had since 1933, when he worked in the Gestapo, exact knowledge of
all the horrible happenings and knew what consequences could arise there
for the German people.

(f) A special circumstance, which shows the witness Dr. Gisevius in his
true light, is the advice, or the suggestion, which he gave to the
experienced bank specialist, Dr. Schacht, that he should allow inflation
to set in and thus get the control of matters into his own hands. This
suggestion leaves only two possibilities: either complete ignorance of
the national economic importance and social effect of an inflation, or
else a boundless unscrupulousness which completely disregards the fate
of employees and workmen. An inflation brought about knowingly can be
described only as a crime against the people. Schacht described it as a
catastrophe. Schacht answered him, according to the record: “You want
the catastrophe; I want to avoid it.”

In order to judge the reliability of the statements by the witness
Gisevius before this Tribunal, I must refer to the book submitted by the
witness as evidence: _To the Bitter End_. This book is also a
“statement” of the witness Gisevius.

To err is human, but when in the year 1945, after the collapse of
Germany, a book appears in which facts and occurrences are presented of
historical and, for those personally involved, of moral and even
criminal importance, the incorrectness of which has become obvious in
the meantime, then the error is unforgivable and reference to false
information is no longer an excuse.

Of the many inaccuracies contained in this book I will only point out
briefly the four which were established before this Tribunal through the
cross-examination by Dr. Kubuschok, which refer to the Defendant Von
Papen, and I beg you to take official, cognizance of it.

(1) Dr. Gisevius has asserted in his book that Von Papen did not resign
notwithstanding the events of 30 June 1934. It is established that Von
Papen did resign and that the public announcement was simply
contemplated to be made at a later date.

(2) Dr. Gisevius asserted further that Von Papen took part in the
Cabinet meeting which he describes with exact details and when the law
was resolved that the measures taken on 30 June 1934 were correct in the
interest of the State. Actually Von Papen has never taken part in this
meeting.

(3) Dr. Gisevius asserted finally that Von Papen went to see Von
Hindenburg, but had not raised a sufficient protest against the
measures. Actually what happened was that the attempts of Von Papen to
visit Von Hindenburg were frustrated, therefore he failed to see him.

(4) The assertion in the book of Dr. Gisevius that Von Papen took part
in the meeting of the Reichstag in which the measures of 30 June were
approved, must equally be labeled incorrect information.

It could not be termed an unfounded reproach if such a statement were to
be described as dubious and the author as unreliable. It is difficult
for me as a German defense counsel to deal calmly with this problem. The
statement of Gisevius reveals the entire tragedy of the German people.
It is for me a proof of the weakness and of the decadence of certain
German circles, who played with the idea of revolt and high treason
without any feeling for the distress of the people. They were a higher
level of future ministers and generals without the backing of the large
masses of our people, the working classes, as Reich Minister Severing
has declared here very clearly.

Mr. Justice Jackson has used the word “resistance movement” in
connection with the examination of the witness Gisevius. We have often
heard during the progress of this Trial about dauntless, brave men and
women, who fought for their country, and have suffered and died for it.
They were our enemies. But no one who tries to judge these things
impartially would deny them acknowledgment of their heroism. But where
do you find this heroism in the group around Gisevius? If one has read
his book _To the Bitter End_ and has heard him here, one looks in vain
for a readily self-sacrificing man. Even the late deed of a Stauffenberg
lacks heroism, because it lacked the resolution of self-sacrifice.
Gisevius, up to 1938—when there might still have been time to succeed
in holding back the wheel of fate—always speaks about negotiations,
conferences; but all these men wished the others, that is, the generals,
to act. If one considers the knowledge of affairs which Gisevius had as
member of the Gestapo, and all his friends had; if one takes into
account the realization of the great danger hovering over the
people—then the decision to take action should not have been in doubt
for an instant for patriotic men, as the members of the group claimed
themselves to be. But what did they do? When the leaders of the army
hesitated or refused, they did not think of taking action themselves,
but turned to the foreign countries.

One would have full understanding for those Germans who were treated in
an outrageous manner or who had been thrown out by the Government,
particularly when they had no means or ways to undertake direct action.
But the Gisevius group had such means and possibilities. Men in the most
influential key positions, men in the OKW, in Hitler’s closest circle,
belonged to them; men who had the possibility to get close to Hitler and
to his evil men behind the scenes. Not one of them mustered up courage
for action when there was time. What did they do instead? They remained
in office, they helped effectively so as to allow crimes such as led to
this Trial to be committed.

I should not like to leave any doubt that the fact of the conspiracy in
itself is of no importance in the question of credibility to be
discussed here. Whoever is a conspirator out of pure motives, who risks
his life, in the full realization of the danger which threatens his
country, is not only clean, but also deserves the gratitude of the
fatherland.

If Gisevius and his friends, who owing to their positions were informed
about everything which most Germans only learned of in all its horror
through this Trial, had served their country in unselfish sacrifice,
then perhaps we and the whole world would have been spared much distress
and suffering.

Admiral Dönitz, who knew Admiral Canaris, the source of information,
well, said:

    “During the time that he was in the Navy, Admiral Canaris was an
    officer in whom little trust was placed. He was altogether
    different from us. We said that he had seven sides to his
    character.”

But, Gentlemen, what does Dr. Gisevius say about Canaris on Page 319 of
the book _To the Bitter End_?

    “The successor was Canaris, at that time captain in the Navy,
    quite clever and more cunning than Himmler and Heydrich put
    together.”

On the subsequent pages I have analysed those personalities who have
been quoted by Gisevius as being the chief sources of information. I do
not wish to go into this in any more detail. We are concerned here with
the persons of Canaris, Nebe, and Thomas.

As regards Pages 96 to 103, I shall make the following brief summary.
With reference to Canaris, I only want to say that he was living in the
closest touch and was very friendly with Himmler, Heydrich, and the
Gestapo, although he was supposed to be their sworn enemy. Thomas, who
was also allegedly a member of the group from the beginning, was an
excellent General Staff officer, and he was an exemplary organizer and
untiring worker in the Army Economic Staff under Keitel and later in the
Army Economic Armament Staff in the High Command of the Army; you know
his publication, 2353-PS. This man was the spirit and the driving power
behind rearmament which he, as well as Keitel and others, considered
necessary to the extent which he energetically pursued. But he is also
the same man who organized the “Barbarossa-Oldenburg Plan” and who
later, under the Four Year Plan, became the head of the economic staff
of the Plan Oldenburg. The results of that plan need not be explained
here by me.

It was General Thomas who, according to very convincing outward
appearances, used all his powers for the economic direction of the war,
and who, after leaving Speer’s division, was not dismissed but was
assigned by Keitel to work with the records office so that he could
write the book which forms the main point of the Indictment with regard
to rearmament. If what Gisevius has said about Thomas is true, then
since 1933 he played a double game, and was an opportunist and not a man
who can be expected to give impartial information.

The figure of Canaris is almost mystical. This is probably necessarily
the case with men who concern themselves with matters which cannot stand
the clear light of day. His position was of great importance for the
entire conduct of the war. It is clear that such people must have to the
highest degree the confidence of both the political and military
leaders. One can judge by the amount of confidence which somebody enjoys
whether he is trustworthy. He also enjoyed the confidence of the
Defendant Keitel, with whom, as is proven, he associated in a friendly
and companionable way, and not only as a subordinate with his superior.
Jodl declared that Keitel was much too trusting. Can one believe that
such a condition existed for years if Keitel dealt with the alleged
reports of Canaris, as the witness Gisevius has testified here, or if he
could even have received an order to commit murder from Keitel, as
Lahousen would have us believe in the cases of Generals Weygand and
Giraud?

Now if Canaris enjoyed such great confidence with Hitler and Keitel, but
at the same time also worked authoritatively in Gisevius’ group, his
character must not only be considered dual, but unreliable and
untrustworthy as well. It is understandable that a person might
temporarily display such a dual nature, if it is done for the sake of a
higher aim, to serve one’s country, to liberate it from a tyrant.
However, one searches here in vain for such a serious aim, for a deed
which makes the unlawful action appear in a light of greater moral
right.

Canaris believed that he could satisfy his revolutionary duty by
expressing doubts in the circle of his trusted political associates and
raising the severest kind of criticism. He waited, like others, for the
generals to act—as an admiral he apparently did not count himself in
this circle—while he himself cultivated his confidential relations with
Hitler and Keitel. According to the testimony of the witness Gisevius,
one must assume that he permitted his political associates to establish
contacts abroad.

When did Canaris tell the truth? He was necessarily entangled in
falsehood. Did he not have to tell his political associates something,
which, in the opinion of the group, looked like activity? Did he not
also have to report on what he supposedly had told Keitel? He is the
typical example of an overrefined, highly intelligent drawing-room
conspirator, protected by the nature of his obscure activity, which to a
large extent could not be checked, in whom however the spirit of action
was lacking.

Keitel had such confidence in Canaris, and such a liking for him, that
he again and again ignored Jodl’s various warnings and even until after
20 July 1944 maintained his confidence in Canaris.

Although Canaris was the most bitter enemy of the Gestapo, he worked,
certainly not out of conviction, closely and on an astonishingly
friendly basis with Himmler and Heydrich. There existed a certain
competition; Himmler also had a central intelligence office, which at
first concentrated on the domestic sphere, although later, step by step,
it expanded abroad. The Defendant Kaltenbrunner testified that this
competition carried with it a possibility of friction, which, in view of
Himmler’s thirst for power, with which Canaris also was familiar, might
easily lead to the Counterintelligence Department becoming integrated
into the Reich Security Main Office (RSHA). Canaris saw himself and the
circle of conspirators endangered. He therefore did something very
clever in organizing co-operation, with the result that Himmler covered
him in various dubious affairs. For a long time this co-operation
functioned well, until the Oster case and the Ankara case afforded the
RSHA’s foreign intelligence service, organized by Kaltenbrunner, an
opportunity to discredit the Counterintelligence of the OKW so strongly
that Hitler decreed the transfer of the Counterintelligence Department.
What is important in this connection is the fact of Himmler’s particular
co-operation with Canaris, and the ensuing consequence, resulting with
compelling logic, that Canaris at no time could have presented a report
which would have seriously incriminated Himmler and his organizations.
For if Canaris had presented such a written order to Keitel, he either
would have had to refer the report to Hitler or inquire from Himmler and
the RSHA respectively. In both cases Himmler would have become informed.
The consequence would have been clear. Co-operation would have become
enmity, and enmity with Himmler meant the greatest danger for Canaris
and his group. I believe that this compelling logic is stronger than any
account by the witness Gisevius which concerns itself with alleged
statements by Canaris.

Such was the versatility of character in a man whom one may judge at
will, but who was neither a conspirator nor can lay claim to
credibility.

For an opinion on the character and credibility of General Thomas, the
following documents are important: Document 2353-PS (Green File),
Document EC-270 and Document EC-271.

(1) Document 2353-PS, entitled “Part A: Work done in the fields of war
economy and armaments industry until the beginning of mobilization in
1939” was presented by the Prosecution to prove rearmament. It does
furnish this proof, which is not being denied by the Defendant Keitel.

After being taken prisoner, Thomas made a declaration in reference to
this work of his which says that after 20 July 1944 he revised his
rather critical memorandum on the rebuilding of German war economy in
such a manner that in case of need, that is, in proceedings before a
German court, it might serve in his defense.

His declaration, which precedes and is attached to Document 2353-PS, is
either untrue, in which case it cannot be presented as evidence by the
Prosecution, or it is true, thereby raising the question of the
credibility of this immediate witness as a source of information for Dr.
Gisevius.

On the whole, the memorandum is true. It is also true, however, that
Thomas wholeheartedly co-operated not only in rearmament but also in the
organization Oldenburg, that is, in economic preparation for war against
the U.S.S.R. I refer to Exhibit USA-141 (conversation of 29 April 1941).

Purpose of the meeting: Introduction to organizational reconstruction of
the economic sector of the Barbarossa-Oldenburg Plan. There it says:

    “He”—the Reich Marshal—“has delegated the task to an economic
    leadership staff headed by the Chief of the
    Wirtschafts-Rüstungsamt (Economy and Armaments Office)
    (Thomas).”

For this task General Thomas thereby became attached to the Reich
Marshal as the chief of this entire undertaking. As explained in
Keitel’s affidavit (Document Book 2, Exhibit Number K-11), Thomas
prepared and directed the entire organizational construction of the
undertaking.

Is this consonant with the contention of Gisevius, and now also of
Thomas, that on principle they were opposed to war, and with their
convinced attitude against Hitler? The task which Thomas assumed and
organized was unmistakably incompatible with valid international law. At
no time did he protest against assumption of this office. The attitude
of General Thomas can also be ascertained from Document EC-270,
submitted by the Prosecution on 6 May 1946. It is the draft of a letter
written on 27 April 1938 by the War Economy Staff (Chief General
Thomas), addressed to Department L (National Defense within the Armed
Forces Operations Staff); it is not signed by the Defendant Keitel. This
involves the struggle for power by Plenipotentiary (GBW) Funk, and
Göring as the Delegate of the Four Year Plan. Document EC-271 shows that
the aim of General Thomas was to place the entire war economy under the
supervision of OKW, that is, under the War Economy Staff which he
headed. Under the guise of an interpretation of the decree of 4 February
1938 on “direction of German armament” he attempted to prevent Funk’s
subordination to Field Marshal Göring as Delegate of the Four Year Plan;
at the same time he also wanted to prevent the plenipotentiary from
becoming independent. It was “to be established” (Page 5 of the
document, last paragraph of the communication) “that in all questions
pertaining to the Armed Forces’ supplies, the plenipotentiary was to
carry out the instructions of OKW.”

This plan did not succeed; nor did Keitel approve it. But from Document
EC-270, with special reference to Figures 1 to 9 (Pages 2 to 4) it
follows that the endeavor of General Thomas was to extend the scope of
his office to that of a General Staff on Economics within the OKW, a
plan which Thomas had been pursuing for years already, in opposition to
Keitel and Jodl; he is the man, an opportunist and a double-dealer, who
claims to have fought against methods he terms corrupt and contrary to
international law. The Defendant Keitel admits that Thomas made reports
pointing to the scarcity of raw materials; he expressed doubts as to
whether armaments would suffice to carry on a war. But these doubts were
shared by the generals, especially by Keitel. Generaloberst Jodl
confirmed the fact that such reports were submitted to Hitler and
Thomas, so that Dr. Gisevius’ contention is proved incorrect in that
respect too.

But it is worst of all with friend Nebe. The witness Gisevius has
described Nebe as one of his most intimate friends who held the same
views as he did. According to the statements of Dr. Gisevius, Nebe had
been his friend since 1933 and was thoroughly familiar with the views of
the witness. He remained in the RSHA—an organization discussed from
many angles here—until 20 July 1944, and in the year 1944 he was in
charge of the headquarters of the Special Service (Sonderdienst) for the
prevention of the escape of prisoners of war. This is shown by Document
USSR-413 submitted by the Prosecution.

To describe this witness—from whom Dr. Gisevius, after leaving the
Gestapo, claims to have received important information continuously—it
should be pointed out that from 1933 to 1944 Nebe served in the RSHA,
evidently to the satisfaction of his superiors Himmler, Heydrich, and
Kaltenbrunner—otherwise he would not have stayed in office so long and
would not have been promoted to the rank of Police General and
SS-Gruppenführer.

So while on the one hand for 11 years he carried out the duties of his
office with the well-known methods of the Gestapo—which was under
Himmler—and later the Kripo, Dr. Gisevius refers to him as his friend
and staunch political associate. Now it might be assumed, perhaps, that
in the position he held he was able to prevent disaster, possibly even
to hold up execution of orders. Document USSR-413, just referred to,
shows that Nebe did not do this. In the deposition by Wielen, forming
part of the document, the horrible case of the 50 escaped R.A.F. fliers,
in which General Nebe, the friend of Dr. Gisevius, was involved, is
dealt with.

Wielen states as follows in this connection:

    “One day during that time I received, about noon, an order by
    telegraph from General Nebe to proceed to Berlin immediately, to
    be entrusted with a confidential order. Arriving in Berlin on
    the evening of that day, I reported to General Nebe at his
    office, Wendischer Markt 5-7. I gave him a condensed report on
    the position of the matter at that time. He then showed me a
    teletype order signed by Kaltenbrunner, to the effect that, in
    conformity with the Führer’s explicit and personal order, more
    than half of the officers who escaped from Sagan were to be shot
    when recaptured. General Nebe himself seemed shocked at this
    order. He was deeply worried. I heard later that he did not go
    to bed that night, but spent the night on his sofa in his
    office. I myself was likewise shocked at this frightful step
    which was to be taken, and refused to carry it out. I said it
    violated rules of war and undoubtedly was bound to result in
    reprisal measures against those of our own officers who were in
    English camps as prisoners of war, and that I flatly refused to
    take any responsibility in the matter. General Nebe declared
    that in this instance I would not be in any way responsible as
    the State Police was to act entirely independently, and that,
    after all, orders given by the Führer had to be executed without
    protest.

    “Nebe furthermore added that naturally it was my duty to keep
    the matter in deepest secrecy, and that the reason for his
    showing me the original order was so that I would make no
    trouble for the State Police.”

Any comment seems superfluous. This is significant of Nebe’s
personality. The trustworthiness of a person is an inseparable part of
his entire personality. Information obtained from a person who for more
than a decade was able to play such an abominable double role can lay no
claim to credibility.

I believe that this analysis of the statements of the witness Dr.
Gisevius and of the men belonging to the Gisevius group gives me the
right to say that the charges made against the Defendant Keitel by the
witness can be no suitable foundation for the argument of the
Prosecution, namely, that the Defendant Keitel

(1) formed a circle around Hitler;

(2) had tremendous influence on the OKW and the Armed Forces;

(3) did not submit reports on atrocities and crimes to Hitler; and

(4) did not protect his subordinates, but even threatened them with the
Gestapo.

Rather is it true that the real position of Keitel, however important it
may have seemed to outsiders, was neither decisive nor of importance
either for the total sum of events or for the basic and important
decisions of Hitler. Justice can be done to the actual importance of
this activity if one says that it was tremendous, because physically and
spiritually it went beyond human strength; because it placed the
defendant perpetually in a dilemma between his military point of view
and the unbending will of Hitler to whom he was faithfully, far too
faithfully, devoted. Physically it presented an almost insoluble
problem, for it had no sharply defined, clear outline but called for the
perpetual balancing of essential differences; the adjustment of personal
sensitiveness; the “self-protection” against encroachments of the
individual offices among themselves or against the OKW; clever
maneuvering when Hitler, in explosive reaction to disagreeable news,
wished to issue extravagant orders; the settlement of all disagreeable
matters which Hitler did not wish to attend to himself.

It was a tremendously thankless task, which found only very slight
compensation in the brilliant position in the immediate proximity to the
head of the State, in the decorative participation in all events of what
is called world history, in the representative discharge of the duties
of a field marshal.

This evidence does not appear convincing if it is intended to prove that
Keitel also actively participated in the political conversations. When
the Defendant Keitel took part in State visits and conversations with
foreign statesmen, he did not participate in the conversations, although
present. Hitler liked to have Keitel in his entourage as the
representative of the Armed Forces. Thus, Keitel was present at
Godesberg when Prime Minister Chamberlain went there, also at Munich on
30 September 1938, and at the visit of Molotov in November 1940. He was
also present at the meetings of Hitler with Marshal Pétain, General
Franco, King Boris, Regent Von Horthy, and Mussolini. This function of
Keitel is, however, insufficient to make the defendant a general who
must have taken a decisive part in the shaping of political events.

How little this assertion is justified is seen from the fact testified
to by Admiral Bürckner that Keitel was extremely careful not to encroach
on the affairs of the Foreign Office and gave his officers orders not to
engage in matters referring to foreign policy. In domestic politics the
exclusion of the Chief of the OKW resulted from the removal of the Reich
War Minister, already dealt with, and the thereby intended and achieved
elimination of political representation of the Armed Forces in the
Cabinet.

It is obvious, and has also already been pointed out, that the position
of the Defendant Keitel as Chief of the OKW involved, and in time of war
to an increased extent, his coming into some kind of contact with all
the ministries and highest offices, and dealing with them as the
representative of the OKW, that is to say, of Hitler.

That did not make Keitel a politician, that is to say, a man who took
part in an advisory capacity in the determination of the Government’s
aims, and had an influence on them. In his high office he naturally
worked to carry out these aims and bears a responsibility to that
extent, but not as a political general.

Mr. President, I am now beginning a long chapter. Do you want me to
start with it?

THE PRESIDENT: Go on reading then until 5 o’clock.

DR. NELTE: The idea of war against Russia was rejected by Keitel. This
found visible expression in the memorandum which Field Marshal Keitel
drew up, discussed with Von Ribbentrop, and handed over to Hitler.
According to his sworn statements the reasons were:

(a) military considerations;

(b) the Nonaggression Pact with the Soviet Union dated 23 August 1939.

In spite of being personally presented, the memorandum had no success.
Hitler, as usual in questions of strategic nature, rejected Keitel’s
point of view as unconvincing.

In this connection, and owing to Hitler’s curt rejection, Keitel asked
for release and transfer to the front. This is the case which Reich
Marshal Göring confirmed in his interrogation. Hitler refused, sharply
criticizing the habit of generals asking to be released or tendering
their resignation whenever he did not approve their opinions or
suggestions.

That was decisive for Keitel: he remained at his post, did his duty, and
fulfilled his obligations in carrying out the tasks incumbent upon him
within the framework of further preparations. Here, too, in keeping with
his conception of duty, Keitel did not make known to the outside world
his basically negative attitude toward the war with Russia, after Hitler
had made his decision.

This case is in several respects typical of Keitel and of the way he is
judged by others. We know—and it has been proved by the evidence—that
other generals were also opposed to war with the Soviet Union. Their
objections, too, were waived or rejected by Hitler. They, too, accepted
the decision of the Supreme Commander of the Armed Forces, continued to
do their duty and carried out the orders given to them. But there was
one basic difference: these other generals went back to their
headquarters after the discussion. There, in their own circle of
officers they spoke about the decision made by Hitler. Of course it was
disputed, yet they acted in accordance with it.

Since Field Marshal Keitel, due to his military conception, as already
depicted, did not make known to the generals, when they appeared in the
Führer’s headquarters for discussions, what his own attitude was, which
was also at variance, the impression was bound to arise that Field
Marshal Keitel completely agreed with Hitler and did not support the
scruples of the Armed Forces’ branches.

THE PRESIDENT: Dr. Nelte, I think you might stop there.

      [_The Tribunal adjourned until 9 July 1946 at 1000 hours._]




                           TRANSCRIBER NOTES

Punctuation and spelling have been maintained except where obvious
printer errors have occurred such as missing periods or commas for
periods. English and American spellings occur throughout the document;
however, American spellings are the rule, hence, “Defense” versus
“Defence”. Unlike Blue Series volumes I and II, this volume includes
French, German, Polish and Russian names and terms with diacriticals:
hence Führer, Göring, etc. throughout.

Although some sentences may appear to have incorrect spellings or verb
tenses, the original text has been maintained as it represents what the
tribunal read into the record and reflects the actual translations
between the German, English, French, and Russian documents presented in
the trial.

An attempt has been made to produce this eBook in a format as close as
possible to the original document presentation and layout.

[The end of _Trial of the Major War Criminals Before the International
Military Tribunal Vol. 17_, by Various.]